diplomatic and consular practice in contemporary - University of Jos ...

TITLE PAGE 

DIPLOMATIC AND CONSULAR PRACTICE IN CONTEMPORARY 

INTERNATIONAL LAW: PROBLEMS AND PROSPECTS 

BY 

BARNABAS AONDOHEMBAFAN ANGER 

B.Sc, M.A. 

PGLAW/ UJ/10141/97 

A Thesis in the DEPARTMENT OF INTERNATIONAL LAW AND 

JURISPRUDENCE, FACULTY OF LAW, 

submitted to the School of Postgraduate Studies, University of Jos, 

in partial fulfillment of the requirements for the award of DOCTOR 

OF PHILOSOPHY in INTERNATIONAL LAW AND DIPLOMACY of the 

UNIVERSITY OF JOS. 

JANURY, 2008.

ii 

DECLARATION PAGE 

I hereby declare that this work is the product of my own research 

effort; undertaken under the supervision of Professor F.C. Nwoke 

and has not been presented elsewhere for the award of a degree or 

certificate. All sources have been duly distinguished and 

appropriately acknowledged. 

BARNABAS AONDOHEMBAFAN ANGER 

PGLAW/ UJ/10141/97

iii 

CERTIFICATION

iv 

ACKNOWLEDGEMENT 

It is often a mammoth task to acknowledge the assistance of 

all to a major work such as this one. This work is however 

incomplete if this is not done. Worthy of first mention is the Lord of 

Host whose victorious hand has helped me not to fear the awesome 

challenges that this programme presented. No words can exhaust 

the strength, encouragement, direction and wisdom the Holy One of 

Israel provided throughout this period. 

I could never forget to acknowledge my wonderful supervisor: 

Professor Nwoke F.C. who, despite his numerous and pressing 

academic and administrative commitments, spared the time, most 

often, at his inconvenience to direct the analysis of this work, so as 

to make it possible for me to present an orderly and comprehensive 

work that this is. 

My appreciation also goes to the Dean of Law, professor Nasir 

for having being so encouraging. To Dr. Patrick Oche, my Internal 

Examiner, whose moral and academic contributions are invaluable. 

My good friends, Dr. Bem Angwe and Dr. Alubo are highly 

appreciated for being such warm friends.

v 

To my wife, Martha Barnes Anger, and sons, Jeph and Jesse, 

and my daughter, Shiphrah, thank you for putting up with those 

lonely nights just to see me through this turbulent task. You have 

this work to show for it. 

My friends Mr. and Dr. (Mrs) Sonnie Reng are acknowledged 

for all the spiritual, moral and financial support. 

I appreciate my Godmother, Ruth Mohammed, for the 

motherly care and financial support. 

I appreciate my long time friends Rev. and Mrs. Bamidele 

Anthony, for all the hard times and love we shared. 

I warmly acknowledge my uncle and wife Mr. And (Hon.) Mrs. 

B.T. Anger, for affording me the warmth of family particularly after 

I lost my beloved mother during the course of this programme. 

I appreciate Prof. Akase Sorkaa, Professor Tony Edoh, Mr. 

David Utume and Dr. Adagba Okpaga for letting me go to Jos each 

time I had to go. 

I acknowledge my fatherly Godfather Engr. Hulugh, S.T. who 

saw this challenge also as his. 

I am indebted to Mr. Jimmy Onyilokwu who allowed his wife 

to keep my family company each time I had to dash to Jos. This 

debt I also owe Mr. and Mrs. Robert Ahor, my friends.

vi 

I thank most profoundly my beloved Father, Ikpor Anger who 

most times denied himself so as to give me quality education. I am 

glad he did not invest in vain. 

I am also highly indebted to my Father and Mother-in-law Mr. 

And Mrs. William Korinya for all the support and sound advice. 

I am thankful to my colleagues especially Simon “Yappy” Ya- 

apera, Jacob “Omencus” Omenka, James Apam, Chief John Enyi, 

Ahen “Akakky” Akaakuma, Iveren “Miss Agood” Uganden, Pauline 

Akpa, Member „Wandeakaa‟ Genyi, Bob Echikwonye, Akuul 

„„Timfinish‟‟ Timbee, Franc Ter Abagen, John Tsuwa, Felicia Ayatse, 

for all the chats and challenges. 

Also to my warm friends especially Barrister Gab Jande, Dr. 

Tyoor F.M.T., Fidelis Orga, for all the good times and support we 

have shared. 

To my special friends Franc Ter Abagen, Joy Idankpo and 

Tersoo Iorember who persevered with me during this period. 

My friends in the Air Force Group Captain Bala Adamu, Group 

Captain Israel Olosope, Group Captain Orjiude and Group Captain 

Adeleke. My friends in the Army, Brig. General C. Duke (Rtd.), Lt. 

Col. A. T. Ali, Col. Abel Umahi, Col Awotoye, Col. Shodunke, Col.

vii 

Cole and Lt. Col. Barnabas Sakaba. It has been fun and 

accomplishing knowing you all. 

I also appreciate my Tennis Mates especially Peter Adzongo, 

Msugh „The Cat‟ Akume, Emmanuel Allagh Jr., Hemen Ajogo, 

Tivlumun Korinya, John „Bob Sessions‟ Asan Tom Ikpa, and Dr. 

Damien Bai. My coaches, Oswald Agayo, Jack War and J. J. Bulya 

are also appreciated. Thank you for all those times we shared. 

To my Cousins of Honour: Dr. Eugene Aliegba, Mr. Robert 

Anger, Dr. Damien Anweh and Basil Anweh. Your academic 

achievements are encouraging to us all. 

My trusted and enduring friend, Engr. Dan I. Sugh is also 

highly appreciated. Thank you for being there. 

Tivlumun Ge, Okpe Godwin, and the ladies in the computer 

room also deserve my recognition for typing the draft and ensuring 

proper arrangement of this work. 

Notwithstanding the enormous contributions made by the 

above-mentioned persons, I remain wholly responsible for any 

defects or mistakes which may inadvertently be found in this work. 

ANGER BARNABAS A. 

January, 2008.

viii 

DEDICATION 

To my wife, Martha, and sons, Jeph and Jesse, 

and my daughter Shiphrah, for their support even 

when they had to put up with several days of my 

absence.

ix 

TABLE OF CONTENTS 

TITLE PAGE . . . . . .. i 

DECLARATION . . . . . .. ii 

CERTIFICATION . . . . . .. iii 

ACKNOWLEDGEMENT. . . . .. iv 

DEDICATION . . . . . .. viii 

TABLE OF CONTENTS. . . . .. ix 

TABLE OF CASES. . . . . .. xvii 

TABLE OF STATUTES . . . . .. xx 

ABBREVIATIONS. . . . .. . xxiii 

ABSTRACT . . . . . . .. xxiv 

CHAPTER ONE 

INTRODUCTION 

1.1 BACKGROUND TO THE STUDY . .. .. 1 

1.2 STATEMENT OF THE PROBLEM . .. .. 5 

1.3 LITERATURE REVIEW . . ... .. .. 6 

1.4 AIMS OF THE STUDY . . ... .. .. 29 

1.5 SIGNIFICANCE OF THE PROJECT ... .. .. 29 

1.6 METHODOLOGY . . . ... .. .. 30 

1.7 SCOPE AND LIMITATIONS OF THE STUDY .. 31

1.8 THEORETICAL BASIS OF PRIVILEGES AND 

IMMUNITIES . . .. .. .. 31 

1.8.1 The Theory of Extra-territoriality .. .. .. 33 

1.8.2 The Theory of Representation .. .. .. 35 

1.8.3 The Theory of Functional Necessity .. .. 36 

1.9 CONCEPTUAL CLARIFICATIONS .. .. .. 37 

1.9.1 Privileges and Immunities .. .. .. .. 37 

1.9.2 Diplomatic Agent .. .. .. .. 42 

1.9.3 Consular Officer .. .. .. .. 42 

1.9.4 Conundrum .. .. .. .. .. 42 

x 

CHAPTER TWO 

EVOLUTION OF DIPLOMACY 

2.1 INTRODUCTION . . . .. .. .. 43 

2.2 THE ORIGIN OF DIPLOMACY .. .. .. 44 

CHAPTER THREE 

ACTORS ON THE DIPLOMATIC STAGE 

3.1 INTRODUCTION . . . . .. .. 66 

3.2 ACTORS ON DIPLOMATIC STAGE .. .. 66 

3.3 ROLES OF ACTORS ON DIPLOMATIC STAGE.. 75 

3.4 METHOD EMPLOYED ON DIPLOMATIC STAGE.. 77 

3.4.1 Treaties . . . . . .. .. 77 

3.4.2 Negotiation . . . . . .. .. 98

xi 

3.5 AN ANALYSIS OF FUNCTIONS OF 

DIPLOMATIC AGENTS .. .. .. .. .. 100 

3.5.1 Representing the Sending State in the 

Receiving State . . . . .. .. 103 

3.5.2 Negotiation with the Government of the 

Receiving State . . . . .. .. 104 

3.5.3 Protecting in the receiving State the Interests 

of the Sending State and its Nationals . .. .. 107 

3.5.4 Ascertaining by all Lawful means Conditions 

and Developments in the Receiving State and 

Reporting thereon to the Government of the 

Sending States. . . . . .. .. 111 

3.5.5 Promoting Friendly Relations Between the 

Sending State and the Receiving State, and 

Developing their Economic, cultural, and 

Scientific Relations .. . . . .. .. 114 

3.6 AN APPRAISAL OF FUNCTIONS OF 

CONSULAR OFFICERS .. .. .. .. 118 

3.6.1 Appointment, Classification and Status of 

Consuls . . . . . . .. .. 118 

3.6.2 Functions . . . . . . .. 121 

3.7 FACTORS THAT ENGENDER THE VIOLATION 

OF DIPLOMATIC IMMUNITIES .. .. .. 126 

3.7.1 State Responsibilities . . . .. 137 

3.8 STATUS OF DIPLOMATS IN NIGERIA .. .. 155 

3.8.1 Inherent Limitations . . . .. .. 161

xii 

CHAPTER FOUR 

SOURCES OF DIPLOMATIC AND CONSULAR LAW 

4.1 INTRODUCTION . . . . .. .. 165 

4.2 SCOPE OF THE ACT . . . .. 166 

4.2.1 Immunities of Foreign Envoys and Consular 

Agents .. .. .. .. .. 166 

4.2.2 Immunities of Chief Representative of a 

Commonwealth Country . . . 169 

4.2.3 Immunities of Members of Staff and 

Families . . . . . .. .. 170 

4.2.4 Consular Immunity . . . .. .. 171 

4.2.5 Immunities of Commonwealth 

Representatives . . . . .. .. 172 

4.2.6 Honorary Consuls . . . .. .. 173 

4.2.7 Immunities of International Organisations .. 174 

4.2.8 Immunities and Privileges of Representatives, 

Members of Committees, Senior and Persons 

on Missions . . . . .. .. 175 

4.2.9 Immunities and Privileges of Official Staff 

and of Senior Officers‟ Families . .. .. 176 

4.2.10 Immunities and Privileges of Other Classes 

of Officers and Servants . . .. .. 176

xiii 

4.2.11 Immunities of Judges and Registrars of the 

ICJ. . . . . . . 177 

4.3 GENERAL SOURCES OF DIPLOMATIC AND 

CONSULAR LAW .. . . . . . 183 

4.4 THE CONCEPT OF SOURCES OF DIPLOMATIC AND 

CONSULAR LAW . . . . . . .. 185 

4.5 SOURCES OF GENERAL INTERNATIONAL LAW. 187 

4.5.1 Treaties . . . . . . .. .. 191 

4.5.2 Custom . . . . . .. .. 193 

4.5.3 Elements of Custom . . . .. .. 197 

4.5.4 General Principles of Law Recognized by 

Civilized Nations . . . .. 202 

4.5.5 Judicial Decisions . . . .. 204 

4.5.6 Writing of Eminent Jurists . . .. .. 205 

4.5.7 Equity and Natural Justice . . .. .. 205 

4.5.8 Hierarchy of Sources . . . .. .. 206 

4.5.9 Peremptory Norms of International Law: 

Jus cogens . . . . . .. 208 

4.5.10 Resolutions of International Organizations .. 211 

4.5.11 Non binding Standards: Soft Law . .. 213 

4.6 INTERNATIONAL CONVENTIONS (TREATIES) 

AS SOURCES OF DIPLOMATIC AND CONSULAR 

LAW .. . . . . . 214

xiv 

4.6.1 Basic treaties on diplomatic and Consular Law: 217 

4.7 INTERNATIONAL CUSTOM AS SOURCE OF 

DIPLOMATIC AND CONSULAR LAW .. .. 219 

4.8 GENERAL PRINCIPLES OF LAW AS SOURCE 

OF DIPLOMATIC AND CONSULAR LAW .. .. 222 

4.9 Judicial Decisions and Teachings of 

the Most Highly Qualified Publicists 

as Sources of Diplomatic and Consular Law .. 224 

CHAPTER FIVE 

INTERNATIONALLY PROTECTED PERSONS 

5.1 INTRODUCTION . . . .. .. 230 

5.2 INTERNATIONALLY PROTECTED PERSONS.. 234 

5.3 SCOPE OF PROTECTION. . .. .. 238 

5.3.1 Diplomatic Agents . . . .. 239 

5.3.2 Legal Implications of the violation of 

Premises of Diplomatic Missions . .. 248 

5.3.3 Measures taken against the violation of 

Diplomatic Immunities . . . .. 255 

5.3.4 Consular Officers . . . . .. 256 

5.3.5 Special Missions . . . . .. 260 

5.3.6 Heads of State and Heads of Government .. 262 

5.3.7 Representatives to Intergovernmental 

Organizations . . . . .. .. 264

5.3.8 International Officials . . . .. .. 265 

xv 

5.4 OTHER PERSONS BENEFITING FROM 

PRIVILEGES AND IMMUNITIES. .. .. .. 270 

5.4.1 Non-Diplomatic Members of the Staff .. .. 271 

5.4.2 Persons Connected with members of the Staff 274 

5.4.3 Nationals of, or those permanently resident in, 

the receiving State . . . .. 277 

5.5 EXCEPTIONS FROM IMMUNITY FROM CIVIL 

AND ADMINISTRATIVE JURISDICTION.. .. 280 

5.6 RECOGNITION AND INTERNATIONAL 

PROTECTION .. .. .. .. … .. 284 

5.6.1 Theories of Recognition . . . .. 288 

5.6.2 The Constitutive Theory. . . .. 288 

5.6.3 Declaratory Theory . . . .. .. 289 

5.6.4 Conditions for Recognition . . .. .. 290 

5.6.5 Methods of according recognition . .. .. 295 

5.6.6 Forms of Recognition: De Facto Recognition 299 

5.6.7 De Jure Recognition . . . . .. .. 300 

5.6.8 Legal Consequences of Recognition . .. 300 

5.6.9 Problems of Recognition . . .. .. 301 

5.7 SOVEREIGN IMMUNITY AND INTERNATIONAL 

PROTECTION . . . . . .. 307

xvi 

CHAPTER SIX 

TECHNICAL CONSIDERATIONS 

6.1 APPOINTMENT AND COMMENCEMENT 

OF PRIVILEGES AND IMMUNITIES . .. 316 

6.2 DURATION OF PROTECTION . . .. 325 

6.2.1 Termination of Diplomatic Missions . .. 326 

6.2.2 Break of Diplomatic Relations . .. 330 

6.2.3 Waivers . . . . . .. .. 333 

6.2.4 Other Instances . . . . .. .. 338 

6.3 ENFORCEMENT OF PRIVILEGES 

AND IMMUNITIES .. .. .. .. 341 

CHAPTER SEVEN 

ABUSE OF PRIVILEGES AND IMMUNITIES 

7.1 SCOPE AND WHAT CONSTITUTES ABUSE .. 353 

7.2 EXTENT AND REASONS FOR ABUSE .. .. 360 

7.3 DEALING WITH ABUSE . . .. 369 

CHAPTER EIGHT 

SUMMARY AND CONCLUSION 

8.1 OBSERVATIONS AND RECOMMENDATIONS. 377 

8.2 CONTRIBUTION TO KNOWLEDGE.. .. .. 395 

8.3 AREAS FOR FURTHER RESEARCH.. .. .. 396 

REFERENCES. . . . . .. .. .. 398

xvii 

TABLE OF CASES 

Alhaji A.G. Ishola Noah V. His Excellency the British 

High Commissioner to Nigeria (1980) 

12 N.S.C.C. 25 . . . . . .. 40,167 

Anglo-Iranian Co. Case (1952) ICJ Reports 

93 at 112 . . . . . .. 79 

Anglo-Norwegian Fisheries Case (1951) 

ICJ Reports P. 116 . . . .. 199,225,260 

Asylum Case: Columbia V. Peru (1950) 

ICJ Reports P. 266. . . . . .. 189, 197 

Barcelona Traction case ICJ Reports 

(1970) P. 3 . . . . . ... 149 

Bergman V. Desieyes U.S. District of Southern 

District of New York, 1946, 30 . . . 40 

Chorzow Factory (Indemnity) case PCIJ 

Reports (1928) P. 29 . . . . .. 141, 174 

Corfu Channel Case(1949)ICJ Reports p.4 . .. 147 

Chorzow Factory (Jurisdiction) case PCIJ 

Reports (1927) P. 21. . . . . .. 86,151 

Duterai and Co. V. Pokerdam Mergra (1952) .. 309 

Re: Commissioner for workmen‟s compensation 

(1951) 38 AIR p. 880 . . . .. 309 

Engelke V. Musmann (1928) A.C. 433 at 450 .. 337 

Fisher V. Begrez (1883) 2CR. M240 E.R. 750 .. 39 

Free Zones Case PCIJ Reports (1932) P. 1.. 83 

I’m Alone case(1935)3RIAA1609 . . .. 150-151

xviii 

Leevwen V. City of Rotterdam (1968) 14 Recueil de la 

Jurisprudence P.63 . . . . .. 268, 

Kramer Italy V. Government of Belgium suit 

No. CA/L/244/84 . . . ... 350 

Kahan V. Pakistan Federation (1951) 2KB 1003: 

18 ILR P 210 . . . . . .. 337 

The Lotus Case PCIJ Reports (1927) 

Serie A No 10 . . . . .. 200 

Mavrommatis Palestine Concession case 

ICJ Reports (1942) P. 12 . . . .. 88,148 

Nottebohm case ICJ Reports (1955) P. 15 .. 150 

Nicaragua Case (1986) ICJ Reports P. 16 ... 206,212 

North Sea Continental Shelf Cases (1969) 

ICJ Reports P.1 . . . . .. 201 

Parliament Bekge (1878) 4 P.D 129 . ... 309 

Thai-Europe Tapioca Service ltd V. Government 

Of Pakistan(1975)1WLR1485; 64ILR 81 ... 311 

The Paquette Habana (1900) 175 US 677 ... 194 

Ransome Kuti V. Attorney General of the 

Federation(1985)2NWLR211at 230 . .. 383 

The Scotia (1871) 14 Wallace 170 . ... 195 

Re: Cristina (1938) ACP485 . . . .. 349 

R. V. A.B (1914) IKB 454 . . . .. 241,244 

R. V. keyn(1876)2EXD63 . . . .. 195

xix 

Re Suarez (1917) 2Ch. 131 . . . .. 337 

Re: Commissioner for Workmen‟s Compensation 

(1951)38AIR P.880 . . . .. 349 

Schooner Exchange V. Mc Faden (1812) 

7 Granch 116 . . . . . .. 309 

The Asylum Case ICJ Reports (1970) 276 ... 229 

The Pesaro (1926) 271 U.S. 562 . . .. 309 

The Reparation Case (1949) ICJ Reports P. 174.. 37,226 

The Schotia(1871)14Wallace 170 . . .. 226 

Trendtex Trading Corporation V. Central Bank 

of Nigeria (1977) Q.B. 529 . . . .. 310 

U.A.R. V. Mirza Ali Kasham (1962) 49 AIR p. 38.. 309 

Youman‟s case(1925-26)Annual Digest of International 

Law cases, p.223. . . . .. 145

xx 

TABLE OF STATUTES 

Statute Of The International Court Of Justice 

The U.S Foreign Sovereign Immunity Act, 1976 

The British State Immunity Act, 1978 

The Singapore State Immunity Act, 1981 

The South African Foreign State Immunity Act, 1982 

Diplomatic Privileges and Immunities Act, Cap 99 Laws Of The 

Federation Of Nigeria, 1990 

Charter Of The United Nations. 

Convention On Privileges And Immunities Of The United 

Nations 1946. 

Convention On The Prevention And Punishment Of Crimes Against 

Internationally Protected Persons, Including Diplomatic Agents 

1973. 

Convention On Special Missions 1969. 

Draft Declaration On The Rights And Duties Of States, 1949. 

European Convention On Immunity And Protocol, 1972. 

The American Convention On Human Rights. 

The European Convention On Human Rights. 

The Department Of State Bulletin, 1952. 

The Nigerian Constitution, 1999. 

Universal Declaration Of Human Rights, 1948. 

Covenant On Economic, Social And Cultural Rights, 1966.

xxi 

Vienna Convention On The Law Of Treaties, 1969. 

Charter Of The United Nations. 


Nations 1946. 



1973. 


Diplomatic Privileges And Immunity Act, CAP 99, Laws Of The 

Federation Of Nigeria, 1990. 



The British State Immunity Act, 1978. 

The Singapore State Immunity Act, 1981. 

The South African Foreign State Immunity Act, 1982. 

The U.S. Foreign Sovereign Immunity Act, 1976. 





Universal Declaration Of Human Rights, 1948. 

Covenant On Economic, Social And Cultural Rights, 1966. 

International Law Commission On State Responsibility

xxii 

Vienna Convention On Consular Relations 1963. 

Vienna Convention On Diplomatic Relations 1961. 

Vienna Convention On The Law Of Treaties, 1969. 


Nations 1946. 



1973. 


Diplomatic Privileges And Immunity Act, CAP 99, Laws Of The 

Federation Of Nigeria, 1990. 



International Arbitrations, New York, Vol. 1, 1898. 







Covenant On Economic, Social And Cultural Rights, 1966. 

International Law Commission On State Responsibility

A.C. Appeal Cases 

xxiii 

ABBREVIATIONS 

A.D. After the Death of Christ 

B.C. Before Christ 

CBN Central Bank of Nigeria 

Ch. Law Repots, Chancery 

E.R. English Reports. 

EEC European Economic Community 

GAR General Assembly Resolution 

ICAO International Civil Aviation Organisation 

ICJ International Court of Justice 

ILC International Law Commission 

K.B. Kings Bench 

NPFL National Patriotic Front of Liberia 

NSCC Nigerian Supreme Court Cases 

Pg. Page 

Q.B. Queens Bench 

Rtd Retired 

U.S United States 

UN United Nations 

Vol. Volume

xxiv 

ABSTRACT 

The saying that no nation is an island is true indeed. Nations 

necessarily must interact with others within the international system. 

Accordingly, the development of socio-political and economic relations 

among nations also necessitated the emergence of appropriate laws and 

regulations to guide the actions of representatives of these nations and 

the host states. This research work has therefore assessed diplomatic 

and consular practice not only in contemporary times but also in 

antiquity. The objectives of this research work are to assess the role of 

diplomatic and consular practice in contemporary international law; to 

examine the effectiveness of the law governing diplomatic and consular 

practice in contemporary times; to examine privileges and immunities 

and how these increase the effectiveness of diplomats; to identify actors 

on the diplomatic stage and their scope of production; to examine causes 

and cases of abuse of privileges and immunities; and to determine and 

address the conundrums that exist in the law governing diplomatic and 

consular practice today. It has made use of secondary sources of data 

which include the published texts for the historical and theoretical 

analysis of this research work. It has examined the performance of the 

law governing diplomatic and consular practice particularly in 

contemporary times. Gaps such as relating to the ambiguous definition 

of diplomacy by some scholars and consequently the difficulty in having 

a universally accepted definition of same. The failure of the conventions 

to deal with emergency situations such as the outbreak of fire and issues 

relating to abuses of privileges and immunities by diplomats that may 

require prompt action by the receiving states is another loose end or gap 

created by the existing conventions in this field. The work recommends 

that Article 27 of the Vienna Convention on Diplomatic Relations 1961 be 

reviewed to incorporate the definition of the size of the diplomatic bag. 

This makes it easier to determine abuse of privileges and immunities 

using the diplomatic bag. Privileges and immunities should not be denied 

the wife of a diplomat on the ground of permanent residence or 

nationality as this undermines the immunity of the diplomat. Lastly, the 

diplomatic premises should be entered into by authorities of the receiving 

state in cases requiring prompt protective action, without an insistence 

on the consent of the head of the mission if he cannot be easily 

contacted. The major contribution of this work to knowledge is that it 

has been able to point out the crucial fact that the conventions have 

failed to define the size of the diplomatic bag and this work has shown 

that this definition helps to create suspicion which necessitate checking, 

and this is one sure way of checking the importation of even fire arms in 

the diplomatic premises and used in a manner that violates or attempt to 

violate world peace.

1 

CHAPTER ONE 

INTRODUCTION 

1.1 BACKGROUND TO THE STUDY 

Diplomatic and consular representation of States is 

governed by International law. In contemporary times the task of 

international law is quite mammoth. In recent times the world is 

seen to be a global village where actions of States affect others 

and this makes it increasingly difficult to see what really falls 

within the domestic jurisdiction of States 1. The end of the cold 

war and a resultant emergence of new autonomous states in the 

former Soviet Union and other socialist states appear to create 

new challenges for diplomatic and consular law. The renewed 

desire of Western capitalist nations to invest and 

interchangeably carry out diplomatic and consular relations with 

these new states, is feared to cause a shifting of attention from 

the south to the East by the East, this again on the face of it 

appears to create new challenges for diplomatic and consular 

law. 

Indeed in the words of the South Commission: 

1 Charter of the United Nations Organisation, Article 2 Paragraph 7. 

It is quite likely the changes in East-West 

relations and within the countries of 

Eastern Europe …may cause the North to 

divert attention and resources away from

2 

the South, at least in the short term. In 

the period immediately ahead, the South 

may well have to face a more homogenous 

and confident North preoccupied with its 

own problems and opportunities. 2 

Professors Claude Ake and Ibrahim Gambari 3 share the 

view above. The Shifting of „big power‟ attention from the South 

(Africa, in this case) is likely to introduce more vigorous intra- 

African relations, which may create self-sufficiency in political 

and economic matters. This is however doubtful owing to the 

high levels of poverty, backwardness, and dependence of African 

states on the West. 

In addition to the above, the end of the cold war made 

possible by the collapse of the Soviet bloc has left scholars like 

Miller with the stance that: 

At this point in history, there is but 

one centre - the United States. The 

United States stands alone in both 

global reach and influence dominant 

and seemingly more able to impose its 

will than any period in its history. 4 

He goes on to assert that America is not just another 

country, it is the centre of power in a world looking forward to 

2 The South Commission, the Challenges of the South : The Report of the South Commission 

(Oxford University Press : 1990) p.158 

3 As cited by Utume, D. A. in Journal of Politics and Administrative Studies Vol.1 No.1, 1999, p. 15. 

4 Miller, P.D. (Admiral) „In the Absence of War employing Military Capabilities in the‟ 90‟s‟ teh 

Fletcher Forum, Volume 198, Number 1, Winter/Spring, 1995, p.5

3 

moral, political and military leadership, 5 a view shared by 

Admiral Howe who advocates not only a leadership role for the 

US but also emphasizes her dominance. 6 

American Supremacy in world politics entails a very 

decisive foreign policy against anti-American sentiments all over 

the world, with minimal opposition. When states relate or 

negotiate their national interest is uppermost. The present global 

trend will take diplomacy to a very sophisticated level. Though 

this is an acceptable trend in diplomacy, diplomatic and 

consular practice will not significantly change because the laws 

governing these practices have not changed, theoretically 

speaking. 

In practice however, the interpretation and practice of 

diplomatic and consular law will no doubt tilt in favour of the 

superpower nations. This is owing to the lopsided trend in 

resources allocation in the international system. The practice of 

law, municipal or international, has shown that law does not 

protect or apply to everyone on the same level. The powers that 

be always interpret and apply the law in a manner favourable to 

them. For instance, the annexation of Kuwait by Iraq in 1989 

did not receive the same interpretation as the American 

involvement in the arrest of the Panama leader, Antonio Manuel 

5 Ibid. P.1 

6 Howe, J.T. (Admiral Ret.) « Will America lead a new World Order » ? The Fletcher Forum, Volume 

18, Number 1 Winter/Spring, 1994.

4 

Noriega. The American military and paramilitary actions against 

Nicaragua around 1979 were not interpreted the same way as 

the attack of North Korea against South Korea during the cold 

war. Examples abound. 

In municipal settings also, the huge leadership ineptitude 

in Africa does not receive the same interpretation as actions by 

the ordinary person to get his due. 

In spite of the above, focus must not be lost on the 

inevitability of relations within the international system. 

Indeed it is a common saying that no man is an island. It 

is therefore true in the same vein, that no nation is an island. 

From these two symbolical assertions, it can easily be seen why 

interactions among nations, just like interpersonal interactions, 

are indispensable to human existence. It is this understanding 

that informed the establishment of diplomatic and consular 

relations among nations. This art of representation and 

negotiation is therefore, as old as social relations which, in fact 

started as soon as families, clans, tribes and people came into 

contact with one another and sought to regulate marriage 

customs and contracts, hunting, trade, navigation, 

communications, disagreements and wars. 7 

7 Nascimento do e Silva, Diplomacy in International Law (India:A.W. Sijthoff-leiden 1972) p.

5 

The development of socio-political and economic relations 

among nations also necessitated the emergence of appropriate 

law and regulations to guide the actions of diplomats and the 

receiving States. 

The guiding laws of diplomatic and consular relations 

clearly define, among others, what constitutes immunities and 

privileges of diplomatic agents and consular officers, as well as 

their obligation to the receiving states. These immunities and 

privileges include personal inviolability, immunity from civil and 

criminal jurisdiction, and immunity from taxation and custom 

duties, among others. 

1.2 STATEMENT OF THE PROBLEM 

The basic problems that this study sets out to unravel are 

rooted in the conundrums in Diplomatic and consular law. 

Notable of these is the question of abuse of privileges and 

immunities by diplomatic agents and consular officers, which 

the existing diplomatic and consular law has not sufficiently 

addressed. In the same vein is the inability of the smaller 

nations of the world, to cope with the challenges of diplomatic 

and consular practice today. Added to these are other 

conundrums relating to issues of inviolabilities, privileges and 

immunities of diplomats.

This quickly brings to mind the following questions: 

6 

(i) Looking at the sophisticated nature of contemporary 

international system, has international law provided 

enough for the sustenance of consular and diplomatic 

practice? 

(ii) Looking at the peculiar problems of our world, especially 

the lopsided style of resources allocation within the system, 

can smaller nations of the world cope with the challenges 

of diplomatic and consular law? 

(iii) How can the conundrums in the existing law be filled to 

reflect the reality of our dynamic world? 

1.3 LITERATURE REVIEW 

A review of literature related to this research work must 

necessarily commence from the very concept of diplomacy. The 

Vienna Convention on Diplomatic Relations 1961 has not defined the 

term. The term has therefore suffered from misuse and confusion, 

with the result that it is difficult to fit existing definitions into the 

characteristics of a good definition: concise, illustrating and generic. 

Diplomacy as a concept is seen to be the act of negotiation that takes 

place among separate political entities. According to Sir Ernest Satow: 

Diplomacy is the application of intelligence 

and tact to the conduct of official relations 

between governments of independent states

7 

extending sometimes also to their business 

with vassal states 8. 

The definition appears suggestive that all diplomats are 

intelligent and tactful. This cannot be so. 9 Though this is 

desirable, not all diplomats can be tactful and intelligent. This 

definition by Satow is both prescriptive and restrictive. It is 

prescriptive in the sense that, it prescribes the requirement for 

becoming a diplomat. Again, restrictive in the sense that it 

restricts the question of being a diplomat to only those who are 

intelligent and tactful. But one cannot be denied being a 

diplomat on account that he is unintelligent and tactless. 

However the connotation of peaceful conduct of relations 

between states by the above definition agrees with the United 

Nations Charter, Article 2(3) on the principle of peaceful 

settlement of international disputes. 10 

Ian Brownlie also defines diplomacy as: 

Any means by which states establish or 

maintain mutual relations, communicate 

with each other, or carry out politics/or 

legal transaction in each case through 

their authorised agents. 11 

8 Satow, E, Guide to Diplomatic Practice, (5 th edition) (Lord-Gore Booth (ed): London; 1979) P. 1. 

9 Gasiokwu, M. U. and Dakas C. J; Contemporary issues and basic Documents on Diplomatic and Consular 

Law, (Nigeria: Mono Expressions Ltd:, 1997) P. 3 

10 Ibid. 

11 . Brownlie, I. Principles of Public International Law, (London: Oxford; 1979) P.345.

8 

Here, diplomacy is presented as a tool in the hands of 

nations or states for peaceful conduct of relations. But with 

recent development in diplomatic affairs, and the involvement of 

other actors in international relations, diplomacy inevitably 

apparently becomes the conduct and management of all official 

relations in which case, officials of government working both at 

home and abroad, who might help promote friendly relations 

with other countries, should also be included. 12 In the words of 

Childs; “diplomacy is the Process by which foreign policy is 

carried out”. 13 

Since foreign policy is seen to be the projection of States‟ 

image in an external environment, some form of negotiation is 

required, and this gives merit to the definition above. Diplomacy 

is seen to be an indispensable tool for directing both the 

domestic and foreign affairs of States 14. 

Harold Nicolson sees diplomacy as: 

12 Gasiokwu and Dakas, OP. Cit., P. 4.8 

The management of international 

relations by means of negotiations; the 

method by which these relations are 

adjusted are managed by ambassadors 

and envoys; the business or act of the 

diplomats. 15 

13 Chabra, H. R., Relations of Nations, (Delhi-India: Subject Publications;) P. 372. 

14 Gasiokwu and Dakas, OP. Cit., P. 1 

15 Nicolson,H., Diplomacy, (3 rd edition) (London: Oxford; 1969) P. 5

9 

The “Peace” element implied by this definition again agrees 

with the United Nations Charter provision for peaceful 

settlement of international disputes. This also points out the 

central role of diplomacy in sustaining the international system. 

Tunkin‟s definition of diplomacy is comprehensive and 

takes into consideration current trends in international 

diplomacy, in which modern States use different sophisticated 

means to attain their objectives. To him diplomacy means: 

An activity (including content, modes and 

methods of the activity of general and 

special state agencies of foreign relations) 

of heads of states and governments, of 

departments of foreign affairs, of special 

delegation and missions and of diplomatic 

representatives appertaining to the 

effectuation by peaceful means of the 

purpose and tasks of the foreign policy of 

a State. 16 

A cross-section of definitions of diplomacy meets at one 

point – the crucial issues of negotiation and peace. It simply 

means that every diplomatic endeavour must have peace as an 

end result. Diplomacy therefore encourages peaceful co- 

existence in the international system. This again means that 

when conflict degenerates to armed conflict then diplomacy may 

become increasingly more necessary, but at this stage it has 

16 Tunkin, G. I., Theory of International law, (London: George Allen and Unwin Ltd.;P. 273.

10 

failed. The viewpoint that war is an aspect of diplomacy, based 

on contributions of eminent scholars as already seen, is not 

correct. Diplomacy is intended to prevent conflict from 

escalating to armed conflict. 

Again the point being made here also is that states are not 

the sole, though principal, actors in diplomatic intercourse, 

neither is diplomacy restricted to diplomatic planning. 

Additionally, diplomats do not cease to be so merely on account 

of being unintelligent and tactless, although such attributes are 

essential. In summary, diplomacy must be the use of peaceful 

means in the conduct of international relations. 

In the broadest sense there has of necessity been 

Diplomacy ever since organised states came into existence. 

Occasions must arise, even in the most primitive communities, 

when it becomes necessary to send representatives to negotiate 

on matters of common interest with neighbouring communities; 

these are most likely to occur in connexion with temporary or 

permanent cessation of warfare. 

Diplomacy as discussed above was conducted on a 

bilateral basis, but examples can be found even then the field of 

activity extending beyond bilateral limits, and today 

multilaterality has become one of the characteristics of modern 

diplomacy. Improvements in means of transport and

11 

communication demand more and more multilateral solutions, 

for today few problems which only affect the relations between 

two single states. 

In the 19th century states began to feel the necessity of 

settling common legal, economic and technical problems through 

discussions with one another, and in many cases realised the 

conveniences of setting up permanent organs to deal with them. 

In this way there sprang up the first organisations in the field of 

posts and telegraphs, railways, the protection of trade marks 

and patent rights, and so on. 

Multilateral diplomacy is effected either through exchanges 

of information between states which are linked together by 

political or economic ties or by means of international meetings. 

The exercise of multilateral diplomacy is more closely felt 

through international meetings, whether they are ad hoc 

meetings held with the aim of solving a specific problem or 

periodical meetings of international or regional organisations. 

Multilateral diplomacy as practised in the big international 

organisations is substantially different from traditional 

diplomacy. The debates are held in an atmosphere of publicity 

and mass communication. The growing development of 

multilateral diplomacy is causing bilateral diplomacy in the 

traditional sense to lose ground, for there can be no doubt that

12 

purely bilateral diplomacy can no longer cope with the 

responsibility of trying to solve the whole vast range of questions 

which are bound up with international relations today. 

This expression “parliamentary diplomacy” is becoming 

part of international terminology. It was used by Dean Rusk to 

describe the negotiations and discussions carried out in 

international organisation in accordance with its rules of 

procedure, but with special reference to the General Assembly 

and the Security Council of the United Nations. Subsequently, 

Dean Rusk developed the basic idea and defined the term in 

details. What might be called parliamentary diplomacy is a type 

of multilateral negotiation which involves at least four factors. 

First, a continuing organisation with interest and 

responsibilities which are broader than the specific items that 

happen to appear upon the agenda at the particular conference - 

in other words more than a traditional international conference 

called to cover specific agenda. 

Second, a regular public debate exposed to the media of 

mass communication and in touch, therefore with public opinion 

around the globe. 

Thirdly, there are rules of procedure which govern the 

process of debate, and which are themselves, subject to tactical 

manipulation to advance or oppose a point of view.

13 

And lastly, formal conclusions, ordinarily expressed in 

resolution, which are reached by majority votes of some 

description, on a simple or two-thirds majority based upon a 

financial contribution or economic stake-some with and some 

without a veto. 17 

Typically we are talking about the United Nations and its 

selected organisations, although not exclusively so, because the 

same type of organisation is growing up in other parts of the 

international scene. 

Despite the importance of parliamentary diplomacy 

however, it cannot be dissociated from traditional diplomacy, 

which has a much wider field of activity. Both these forms of 

diplomacy have identical aims, parliamentary diplomacy needing 

to be complemented by traditional diplomacy, which can, beyond 

the schemes exercise much greater influence away from the 

public eye. 18 

The growing public interest in problems relating to 

international politics has alerted governments to the need, 

alongside their traditional diplomatic activity, to keep public 

17 Dean Rusk “Parliamentary Diplomacy: Debate Versus Negotiation”, Journal of World. Affairs, Vol. 

26. (1955) P. 121. 

18 Nascimento do e Silva, Diplomacy in International Law, (Leiden: New York; 1972) P. 10

14 

opinion abroad properly informed about the main lines guiding 

their foreign policy, and present them in an attractive manner. 

Public policy allows a state to make its foreign policy, 

known, that is, the guidelines which will orientate its 

international conduct, while diplomacy, in the sense of 

negotiation, goes on normally and insincerely when 

circumstances demand. It is the task of public diplomacy to 

analyse the similar activity of foreign governments and see its 

influence on public opinion and on the formulation and carrying 

out of foreign policy. 

Public diplomacy uses every available means of 

communication, including cultural and educational exchanges, 

distribution of publications, the press, the radio and television 

lectures and contents and setting up of national libraries. 19 

If viewed in isolation, Article 41 (1) of the Vienna 

Convention on Diplomatic Relations 1961 appears to have 

foreknowledge of the tendency to abuse privileges and 

immunities by diplomats. This Article provides: 

19 Ibid. P. 12. 

Without prejudice to their privileges and 

immunities, it is the duty of all persons 

enjoying privileges and immunities to 

respect the laws and regulations of the 

receiving state; they also have a duty not

15 

to interfere in the internal affairs of the 

state 20. 

The provisions of the 1961 Convention on Diplomatic 

Relations have not shown sincere commitment to checking the 

excesses of diplomatic agents. The above provision is nothing 

but a passionate appeal. There is no punishment indicated in 

the event of a breach on the part of the diplomat. But the most 

outstanding quality of any law is its ability to compel action. 

This is what separates law from related concepts like morality, 

politics and economics. Law compels an action. It is not a 

passionate appeal. It gives no choice except obedience, and 

punishes violation. 

The words of the above provision are clear that a violation 

on the part of the diplomat cannot be punished. This is better 

illustrated by the provision in Article 29 of the same Convention: 

The person of a diplomatic agent shall be 

inviolable. He shall not be liable to any 

form of arrest or detention. The receiving 

state shall treat him with due respect and 

shall take all appropriate steps to prevent 

an attack on his person, freedom or 

dignity. 21 

The provision above is precise but certainly not embracing 

enough. What constitutes violation of a diplomatic agent has not 

been defined. What happens in emergency situations? Suppose 

20 Article 41 paragraph 1 of the Vienna Convention on Diplomatic Relatons, 1961. 

21 Article 29 of the Vienna Convention on Diplomatic Relations, 1961.

16 

a diplomatic agent is chocking life out of a national of the 

receiving state, will an action in self defense by the victim 

tantamount to violation of the diplomatic agent? What about a 

humanitarian intervention in favour of the victim by a friend? 

What about the duty of the state to protect her nationals from 

danger? Will the exercise of this duty in emergency situations 

such as this one amount to a violation of Article 29 above? 

Though not stated in Article 29, it is the viewpoint of this 

researcher that this provision is narrow and should be reviewed 

to cover emergency situations involving the diplomatic agent. 

The essence of any law is to promote justice. In the effort to 

define “law”, some modern scholars like Hart conclude that 

there are three “basic issues”: (1) how is law related to the 

maintenance of social order? (2) What is the relation between 

legal obligation and moral obligation? (3) What are rules and to 

what extent is law an affair of rules? Others like Stone describe 

several sets of attributes that are usually found associated with 

law. Accordingly, law is (1) a complex whole, (2) which always 

includes social norms that regulate human behaviour. These 

norms are (3) social in character, and they form (4) a complex 

whole that is “orderly”. The order is (5) characteristically coercive 

and (6) institutionalized. Law has (7) a degree of effectiveness

17 

sufficient to maintain itself. 22 Law is one of the devices by means 

of which men can reconcile their actual activities and behaviour 

with the ideal principles that they have come to accept, and can 

do it in a way that is not too painful or revolting to their 

sensibilities and in a way which allows ordered (which is to say 

predictable) social life to continue 23. 

According to Ray: 

The three most general and important 

features of the law are that it is 

normative, institutionalized and 

coercive. It is normative in that it 

serves, and is meant to serve, as a guide 

for human behaviour. It is 

institutionalized in that its application 

and modification are to a large extent 

performed or regulated by institutions. 

And it is coercive in that obedience to it, 

and its application are internally 

guaranteed, ultimately by the use of 

force. 24 

The inability of diplomatic and consular law to deal 

decisively with the excesses of diplomatic agents is again 

captured by Article 31 of 1961 Convention: 

A diplomatic agent shall enjoy immunity 

from the criminal jurisdiction of the 

receiving State… 25 

22 

International Encyclopedia of the Social Sciences, Vols. 9&10, 1972. p.73. 

23 

Ibid. P. 74. 

24 

Ray, J. The concept of a legal system (Oxford : O.U.P ; 1970) p.3. 

25 

Article 31 Paragraph 1 of the 1961 Convention.

18 

The provision above seals the inability of states to punish 

offending diplomats. Though declaring diplomats persona non 

grata is an option states have, it could give rise to reciprocal 

moves by the sending state. 

The above provision fails to deal with the excesses of 

diplomatic agents. The diplomatic agent is seen as a 

personification of the sending state in the receiving state. To 

turn the state loose on him means violating the integrity of his 

state which in the same vein violates a vital principle of the 

United Nations which protects the territorial integrity of states. 

But this cannot be allowed to protect illegality. A drunken 

diplomatic agent who shoots down some nationals of the 

receiving state cannot possibly be allowed to hide under this 

protection and avoid arrest. Thankfully in recent times 

particularly, the principle of restrictive immunity has made it 

possible to try protected persons when they leave office. The 

cases of Milosevic, Taylor, Pinochet, etc are good ones in this 

direction. In same vein, Article 41 (3) of the 1961 Convention 

provides: 

26 Article 41 Paragraph 3. 

The Premises of the mission must not be 

used in any manner incompatible with 

the functions of the mission… 26

19 

Article 41 (3) should in principle forbid the use of 

diplomatic premises for purposes beyond the function of the 

diplomatic mission. This means the premises should not be a 

place for housing criminals, stockpiling arms, training terrorists, 

etc. If this provision is rigidly followed by states, such case as the 

one involving Libya and UK in 1984 where an orderly 

demonstration was held by Libyan opponents of Colonel 

Qaddafi‟s government, on the pavement in St. James‟s square, 

London, opposite the Peoples‟ Bureau. Shots were alleged to 

have been fired from the windows of the Bureau, killing a 

Woman Police Constable Fletcher, who was on duty in the 

square 27. This is a case of non-adherence to Article 41. This 

case degenerated to the severing of diplomatic relations between 

the two countries. 

Compliance to Article 41 (3) is further denied by Article 27 

(2) and (3) of the same Convention. These provide: 

The official correspondence of the mission 

shall be inviolable. Official 

correspondence means all correspondence 

relating to the mission and its functions… 

The diplomatic bag shall not be opened or 

detained…. 28 

The provision above makes it impossible for Article 41 (3) 

to be effective since one of the channels through which even fire 

27 Roslyn Higgins „The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom 

Experience‟ in the American Journal of International Law Vol.79, 1985, p.641. 

28 Article 27 Paragraphs 2 and 3.

20 

–arms can be taken to the diplomatic premises and used in a 

manner inconsistent with Article 41 (3), cannot be opened or 

detained. 

Owing to the high levels of crime in contemporary times, 

some form of search should be allowed. This kind of search 

should involve the use of electronic gadgets or sniffing by dogs, 

where there is strong indication that a diplomatic bag may be 

carrying items that may encourage illegality; this style of search 

should not be seen as violating Article 27(2) and (3). 

Again the law must provide for the size of a diplomatic bag 

and what possible items it should carry. This makes it easy to 

detect violations, and therefore the need to search them. 

Another problem of significance that this study seeks to 

examine is the fact that provisions of diplomatic and consular 

law have not taken cognizance of the smaller and weaker nations 

of the world, particularly as it relates to performing some of the 

obligations bestowed upon them by law. For instance, Article 22 

of the 1961 Convention provides: 


The Premises of the mission shall be 

inviolable. The agents of the receiving 

state may not enter them, except with the 

consent of the head of the mission. 29

21 

This provision has also failed to provide for peculiar 

situations where intervention cannot be avoided. What happens 

if security reports show that a peculiar diplomatic mission is 

carrying out torture activities against nationals of the receiving 

state in their premises? Will a humanitarian intervention 

tantamount to violation of the diplomatic mission. Will the 

receiving state still be bound to take all appropriate steps to 

protect mission premises as provided for in Article 22(2) where 

the above discussed crime against her nationals is going on? 

Will a protest match in front of the embassy by concerned 

nationals of the state amount to disturbance of the peace of the 

mission? 

Again, what about emergency situations such as the 

outbreak of fire? How can the receiving state protect premises it 

has no knowledge of and can enter only if permitted by the Head 

of the mission? What if his consent cannot be achieved as 

promptly as the situation requires? Will entry without consent 

violate Article 22(1)? 


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. 

30

22 

The premises of the mission, their 

furnishings and other property thereon 

and the means of transport of the mission 

shall be immune from search, requisition, 

attachment or execution. 31 

These provisions forbid entrance into the diplomatic 

premises by the receiving state, and at the same time places a 

special duty on the receiving state to protect these premises, 

they cannot go into. This task is mammoth for the weaker 

nations of the world, which have low military ability even to 

maintain minimum peace in their territories that they have free 

access to. How could they protect a place they have no good 

knowledge of? These nations have no technical ability to cope 

with emergency situations. This helps to explain why more 

Kenyans and Tanzanians died on August the 7 th 1998 when US 

embassies in these countries were bombed. Only a few 

Americans died in each of the cases. 

In a nutshell, since nations cannot enter mission premises 

until permitted, it is unrealistic to place a special duty on them 

to protect these premises, particularly the weaker nations of 

Africa, Latin America, and most of Asia. 

At the end of the day we are left with the contradictory 

nature of diplomatic and consular law, which is indeed 

responsible for the absence of strict compliance to it. 

31 Article 22 Paragraph 2.

23 

These gaps or lapses created by the 1961 Vienna 

Convention are also acknowledged by Dakas in the following 

words: 

A superficial examination of the diplomatic 

privileges and immunities embodied in the 

convention would give the impression that 

they, as expressed in the convention are 

impeccable. However, a careful reflection 

upon, and an appraisal of, these provisions 

would raise certain puzzling questions… 32 

These „puzzling questions‟ manifest in several ways. One of 

these relates to issues connected to the head of a diplomatic 

mission. For instance, the head of the mission is not considered 

as having taken up his functions until he has presented his 

credentials or when he has notified his arrival and a true copy of 

his credentials has been presented to the appropriate ministry. 

Yet his privileges and immunities commence from the moment 

he enters the territory of the receiving state on proceeding to 

take up his post. Dakas observes that, the implication of this is 

that under the first lap of article 39 (1), privileges and 

immunities of the Head of the mission attach to him even at a 

time when he is not considered as having taken up his functions 

in the receiving state. 

The above lacuna follows up another. The severe 

curtailment of the privileges and immunities of persons who are 

32 Gasiokwu and Dakas, Op. Cit. p.76.

24 

nations of or permanently resident in the receiving state also 

raises questions. What happens in cases of dual nationality? 

How will this provision apply? Again, should the wife of a 

diplomat suffer this restriction merely on account of nationality 

or permanent residence? Will that not undermine the privileges 

and immunities of her husband? 

Again, the Convention also fails to define such crucial 

concepts as „reasonable time‟ and „appropriate steps‟ used 

several times in it. 

Dakas summarizes this up in the following words: 

Against the backdrop of the foregoing 

discourse, it is clear that the formulation of 

the privileges and immunities in the Vienna 

Convention on Diplomatic Relations 1961 

inheres with conundrums, ambiguous 

provisions and loose ends. 33 

The problem of loose ends in the convention has given rise 

to other problems. It has reduced diplomatic law to a matter of 

passionate appeals in relation to diplomatic agents. Though the 

Convention places certain duties on the diplomatic agents, it 

fails to prescribe punishment against offending diplomats. Due 

to this laxity, a diplomatic agent has a choice whether to abuse 

his immunities or not. Several of them have. 

33 Ibid p.80. 

As Dakas, Nasir and Gamaliel put it:

25 

There is no gainsaying the 

incontrovertible fact that diplomatic 

agents play a crucial role in the society 

which, of necessity, requires the 

conferment of immunities and privileges 

on them. What is doubtful, and which is 

a serious cause for concern, is whether 

diplomatic practice accords with the fact 

that the immunities and privileges are not 

meant to bolster up the whims and 

caprices of the diplomatic agents or place 

them above the law and licensed to treat 

same with impunity. 34 

The concern expressed above is indeed very realistic with 

contemporary times. For instance, the American Journal of 

International Law states that in many of the major capitals of the 

world, it came to be felt that diplomats were abusing the 

privileged status given to their vehicles, and in particular, 

parking illegally, causing obstructions and failing to pay traffic 

fines 35. 

In the period 1974 – mid 1984, there were 543 occasions 

on which persons, because of diplomatic immunity avoided 

arrest or prosecution for alleged serious offences 36. 

The mid-1970s introduced more worrying problems. It 

became clear that firearms, contrary to local laws were held by 

certain diplomatic missions. Further it seemed that these 

firearms were being imported through the diplomatic bag. In 

34 Ibid. p. 127. 

35 Rosalyn Higgins, Loc. cit. 

36 Ibid.

26 

recent years in various countries, there have also been terrorist 

incidents, in which it was believed that the weapons used were 

provided from diplomatic sources. It was widely thought that 

certain foreign governments were promoting state terrorism 

against dissident exiles, through the involvement of their 

embassies in the country concerned 37. The April 1984 case 

involving Libya and the UK is a ready example here. All of these 

can be traced to the loose nature of the immunities and 

privileges accorded diplomats and mission premises. 

This gives rise to another problem. With the new wake of 

international terrorism and other crimes taken to a very 

sophisticated level, how can the smaller nations of the world 

cope with this huge challenge? The Convention places a special 

duty on states to protect diplomats and diplomatic premises. 

This challenge is mammoth enough coupled with the lapses in 

the 1961 Convention, this challenge is doubly so. 

The countries of Africa, Latin America and most of Asia are 

characterized by weak industrial, political, economic, 

technological and cultural bases. They hardly have the 

foundation to cope with tasking issues within their domestic 

environment. The third world is bedecked by conflict of every 

nature stemmed from dissatisfaction created by poor leadership, 

37 Ibid.

27 

massive corruption, western manipulations and high levels of 

poverty. It is correct to state that the third world is going 

through peculiar conflict such that cannot be seeing in the same 

magnitude elsewhere in the world. When people are so poor and 

diseased, they are more interested in food and good health than 

anything else. African leaders need to come together to deal 

sincerely with the economic and political needs of Africa. The 

rest of the world especially the USA and Western Europe must 

appreciate Africa‟s peculiarity in terms of urgent economic 

transformation, the absence of which has reduced her efficiency 

in world affairs. 

The implication of the above is that Africa will consistently 

be incapable of protecting the embassies of western nations in 

African territories. Activities of terrorists such as what was seen 

in Kenya and Tanzania will persist. 

The provisions of the 1963 Convention on Consular 

Relations attempt to take care of these lapses in relation to 

immunities and privileges accorded consular officers. A consular 

officer for instance can be arranged by the competent judicial 

authority if he is alleged to commit a grave crime 38. The 

convention also provides that the receiving state shall take such 

steps as may be necessary to protect consular premises of a 

38 Article 41 (1).

28 

consular post against any intrusion or damage and to prevent 

any disturbance of the peace of the consular post or impairment 

of its dignity 39. The consular post can however be entered into 

by authorities of the receiving state without the consent of the 

head of the consular post in case of fire or other disaster 

requiring prompt protective action 40. In this peculiar case, his 

consent will be assumed. 

Though the 1963 Convention has conundrums of its own, 

its situation is not as cumbersome to deal with as that of the 

1961 Convention. Either ways the problems of Africa serve as a 

major hindrance to performing her obligations under 

international law. 

Indeed, the question of handling abuse of privileges and 

immunities by internationally protected persons remains a very 

delicate one. States, especially the host states have to be careful 

how they deal with offending diplomats because of the fear of 

reciprocity. The precarious and dependent nature of smaller 

nations of the world makes this peculiarly difficult. Most of these 

nations depend on the West for survival. How much reciprocity 

can there be between unequals? These nations are vulnerable 

and the fear of reciprocity can make them put up with the 

39 Article 31. 

40 Article 31 (2).

29 

excesses of Western diplomats in their territories, therefore 

condoning abuse. 

1.4 AIMS OF THE STUDY 

The main aims of this project are: 

(i) To assess the role of diplomatic and consular practice in 

contemporary international relations. 

(ii) To examine the effectiveness of the law governing 

diplomatic and consular practice in contemporary times. 

(iii) To examine privileges and immunities as a tool for effective 

performance by diplomats. 

(iv) To identify actors on the diplomatic stage and scope 

protection. 

(v) To examine causes and reasons of abuse by diplomats of 

diplomatic and Consular privileges, and efforts to check 

this. 

(vi) To determine and address the conundrums that exist in 

diplomatic and consular. 

1.5 SIGNIFICANCE OF THE PROJECT 

As this work will examine diplomatic and consular 

practices, a crisis engulfed international system; 

recommendations arising from it will help to set new challenges 

for international law. It will also uncover information that may

30 

be useful to students of international law in general and 

diplomatic and consular law in particular. This work will also 

uncover information that will facilitate the sum total of relations 

that take place among actors in the international system. 

A publication arising from this project is bound to add up 

to the increasing interest of researchers in this field. It is 

expected that comments, observations and criticisms made on 

the write-up presented at different fora will be published by 

journals keen on Diplomatic and Consular law. 

1.6 METHODOLOGY 

This thesis has made use of data that fall into two 

categories of secondary and primary data materials. The 

secondary data materials include the published texts. These 

cover the theoretical and historical aspects of the study. 

Primary data include laws-constitutions; Organic laws, Decrees, 

Acts, Edicts, Administrative rules, Treaties, etc. Other primary 

data materials include international law documents. These are: 

(i) The Vienna Convention on Diplomatic Relations 1961. 

(ii) The Vienna Convention on Consular Relations 1963. 

(iii) The Convention on Special Mission 1969. 

(iv) Privileges and Immunities of the United Nations 1946 

(v) Privileges and Immunities of the Specialized Agencies 1947.

31 

(vi) Convention on the Prevention and punishment of Crimes 

Against Internationally Protected Persons, including 

Diplomatic Agents 1973. 

(vii) The United Nations Charter. 

1.7 SCOPE AND LIMITATIONS OF THE STUDY 

The collapse of the Soviet Union in July, 1991 introduced a 

new world order where American supremacy is envisaged by 

many commentators like Miller and Howe. 

This period following the collapse of the Soviet Union to 

date is the scope of this project because it is believed to 

introduce interesting trends in Diplomatic and Consular 

practice. 

This work therefore examines the conundrums in the 

existing law on diplomatic and consular practice in a 

contemporary world from July, 1991 to date. 

1.8 THEORETICAL BASIS OF PRIVILEGES AND 

IMMUNITIES 

As stated in the preamble of the Vienna Convention on 

Diplomatic Relations 1961: 

...The purpose of such privileges and 

immunities is not to benefit individuals 

but to ensure the efficient performance of

32 

the functions of diplomatic missions as 

representing states. 41 

The above statement primarily means that these privileges 

and immunities are accorded diplomats not necessarily for who 

they are but for what they do. 

The justification for diplomatic immunity is on the grounds 

that the diplomat is a representative of a sovereign or 

independent state or official of an international organisation. For 

this reason he needs an atmosphere to operate, free of pressure 

so as to negotiate. He may even serve in a country that is not 

necessarily friendly to his. Diplomatic Privileges and immunities 

can summarily be understood to mean certain rights and 

privileges enjoyed by diplomats. 

As Satow puts it: 

The immunities and privileges of 

diplomatic agents extend to exemption 

from criminal, civil, police, fiscal and 

ecclesiastical jurisdiction. 42 

The concept of privileges and immunities can be 

understood as explained by the following Theories: 

i. The theory of extra-territoriality; 

ii. The theory of representation; and 

iii. The theory of functional necessity. 

41 See preamble of Vienna Convention on Diplomatic Relations 1961 Paragraph 4. P. 1 

42 Satow, OP. Cit. P. 176

33 

1.8.1 The Theory of Extra-territoriality 

The theory of Extra-territoriality emerged with the 

emergence of modern states in the international system. This 

was a time states set up permanent foreign missions. The 

implication is that the setting up of a foreign mission means the 

extension of a states‟ territory in that land. The police in the 

receiving state have no right to enter the premises except with 

the permission of the head of the mission. 43 

In the words of Grotius: 

The common rule, that he who is in a 

foreign territory is subject to that 

territory, does, by the common consent of 

nations, suffer an exception in the case of 

ambassadors, as being, by a certain 

fiction, in the place of those who send 

them (Senatus faciem secum attulerat, 

uctoritatem reipublicae, ait de legato quo 

dam M. Ilius), and by a similar fiction 

they are, as it were, extra-territorium; and 

thus, are not bound by the civil law (Civili 

Jure) of the people with whom they live. 44 

The quotation by Grotius above does not only emphasis the 

jurisdictional and personal immunity of the diplomat alone, but 

goes ahead to confirm that privileges and immunities are 

accorded these people because their functions are seen to be on 

43 See article 22(1) of the Vienna Convention on Diplomatic Relations 1961 

44 As quoted by Satow, Ernest, OP. Cit. P. 174

34 

behalf of sovereign states in foreign territories. For this reason, 

the diplomatic premises is seen as an extension of the territory of 

the sending state in the host state, and therefore adequately 

protected by diplomatic and consular law. 45 

This theory of extra-territoriality is based on two different 

and yet related legal fictions. These are:- 

i. The concept of territory, where the diplomatic premises is 

considered as part and parcel of the territory of the sending 

state, and 

ii. The concept of residence which holds that the diplomat is 

not subject to local laws of the receiving state but he is 

residing in his own territory. 

In the words of Satow: 

The term extra-territoriality is that used 

to denote the immunities accorded to 

foreign sovereigns and to diplomatic 

agents... it is more in accordance with the 

actual position to interpret it as denoting 

that he is not subject to the authority or 

jurisdiction of the State to which he is 

accredited. 46 

45 See Article 22 of the Vienna Convention on Diplomatic Relations, 1961 

46 Satow, Loc. Cit.

35 

1.8.2 The Theory of Representation 

This theory emphasises that a diplomat is a personification 

of a sovereign state and therefore if attacked, a sovereign state is 

attacked, According to Satow: 

These immunities are founded on 

common usage and tacit consent; they are 

essential to the conduct of relations 

between sovereign independent states, 

they are given on the understanding that 

they are reciprocally accorded, and their 

infringement by a state would lead to 

protest by the diplomatic body resident 

therein, and would prejudicially affect its 

own representation abroad. 47 

Satow‟s view above does not only confirm the relevance of 

privileges and immunities in diplomatic and consular practice in 

a changing world, but also introduces the concept of reciprocity, 

which is seen to be an effective tool for the enforcement of 

diplomatic and consular law. 

Again, his view above also agrees with what happened in 

Nigeria in 1973 when the Federal Military Government felt that 

there was a need to effect a change of her currency from pounds 

sterling to Naira. The essence of carrying out this exercise was to 

check the trafficking of Nigerian currency. For this reason a 

procedure was suggested to open and inspect official 

correspondence and diplomatic bags or consular pouches. The 

47 Ibid.

36 

exercise which breached diplomatic and consular law, 48 

generated much protest and condemnations among foreign 

Missions accredited to Lagos. 

Since the principles of the United Nations emphasise 

sovereign equality of states, among other principles, a 

representative of a sovereign state acting within stipulations of 

international law, means a personification of such nation-state. 

This theory of representation receives credence in the case of 

Bergman Vs Desieyes where it was held that a foreign Minister 

en route to or from his post in another country is entitled to 

innocent passage through a third country, and is entitled to the 

same immunity from jurisdiction off the courts of a third country 

that he could have if he were resident therein. 

1.8.3 The Theory of Functional Necessity 

This theory is based on the fact that the independence of a 

state requires freedom of movement and communication 49 for 

her diplomats in foreign territories to be effective. The interacting 

states are independent and sovereign, but far apart. According to 

Rebecca Wallace: 

48 See Article 27(2) and (3) of the Vienna convention on Diplomatic Relations, 1961, and Article 35 (2) 

and (3) of the Vienna Convention on consular Relations, 1963. 

49 See article 27(1) of the Vienna Convention on Diplomatic Relations, 1961

37 

Diplomatic privileges and immunities 

have, as their raison d‟etre, a functional 

objective - the purpose of such privileges 

and immunities is not to benefit 

individuals, but to ensure the efficient 

performance of the functions of diplomatic 

missions as representing states. 50 

The above view, if states must interact and maintain their 

sovereignty and independence, diplomats will do that on their 

behalf. For them to be able to do this, they need privileges and 

immunities. 

The issue of legal Personality of international 

organisations, 51 put to rest by the advisory opinion of the 

International Court of Justice in 1949, emphasises the 

importance of international organisations as actors on the 

diplomatic stage. This explains why their representatives enjoy 

privileges and immunities even on permanent basis. This 

development proves that not only states maintain diplomatic 

relationship. The view by Wallace does not appear to bring this 

out, but most certainly recognises privileges and immunities 

accorded diplomats for reasons of functional necessity. This 

50 Wallace, R. M. M., International law, (London: Swect & Maxwell; 1986) P. 111 

51 The issues of legal personality of international organisations was emphasised in the REPARATION 

CASE (1949) involving the United Nations while mediating in the conflict between Israel and 

Palestine. The International Court of Justice confirmed the international legal capacity of the United 

Nations and its competence consequently to bring an action concerning its killed agent by Israel in 

1948 in the course of mediating. And such action can be brought on behalf of itself and survivors of the 

victim. (As cited by Brierly, J. L., Law of Nations, (6 th edition) (London: Clarendon Press; 1963) PP. 

120-121.

38 

agrees with the preamble of the 1961 Vienna convention, 

mentioned earlier. 

Accordingly, United Nations Officials like the Secretary- 

General, Judges of the International Court of Justice, members 

of the United Nations attending conferences, and many more, 

enjoy privileges and immunities in the same vein. This is 

recognised by the municipal laws of all nations including Third 

World nations like Nigeria. 52 

1.9 CONCEPTUAL CLARIFICATIONS 

1.9.1 Privileges and Immunities 

The term “privilege” can be defined as a “right or immunity 

granted as a special benefit, advantage, or favour, special 

enjoyment or an exemption from an evil or burden”. 53 

It can also be conceived as the legal concept of being 

entitled or authorised to do or not to do something as one 

pleases. 54 

Immunity on the other hand has been defined by Walker to 

be “a State of freedom from certain legal rules”. 55 

52 See the Diplomatic Immunities and Privileges Act, Cap. 99, Laws of The Federation of Nigeria, 

1990. 

53 See the Webster New International Dictionary (3 rd Edition) P. 632. 

54 Encyclopaedia Britannica, (1968) P. 982 

55 Walker, D. M., The Oxford Companion to Law, London: Clarendon Press; (1980) P. 60.

39 

The tasks of the diplomats are such that they need an 

atmosphere free of pressure and undue interruption to be 

effective. Based on this, international law has vested on them 

certain privileges and immunities which states are bound to 

observe, to facilitate the performance of diplomats within their 

territories. 

The concept of privileges and immunities is an ancient one 

as can be seen indicated in the opening paragraph of the Vienna 

convention on Diplomatic Relations of 1961, that is, “Recalling 

that peoples of all nations from ancient times have recognised 

the status of diplomatic agents…” 56 These Privileges and 

immunities as mentioned in paragraph 4 of the preamble of the 

same convention is not meant to benefit individuals but to 

ensure efficient performances of their functions. 

This principles of privileges and immunities as early as 

1883 became a principle in the decided case of Fisher Vs 

Begrez. 57 Here it was held inter alia that the diplomatic 

documents were properly admitted in evidence. Any diplomatic 

Privilege that might attach to documents belongs to the 

56 See Vienna convention on Diplomatic Relations 1961: Opening paragraph to the preamble, 

P. 1. Paragraph 1. 

57 (1883) 2CR. M 240 E.R. 750

40 

ambassador and could not be raised by a Canadian Citizen in a 

criminal proceeding brought against him by his government. 

Also Bergmen vs. Desieyes 58 where it was held that a 

foreign minister en route to or from his post in another country 

is entitled to the same immunity from the jurisdiction of the 

courts of a third country that he would have if he were resident 

therein. 

Again, in Alhaji A. G. Ishola Noah vs His Excellency the 

British High Commissioner to Nigeria 59 where the Supreme 

Court was confronted with the issue of whether it had 

jurisdiction in an action brought against the British High 

Commissioner; and whether an action brought against a foreign 

envoy is valid. It was held inter alia that the Supreme Court of 

Nigeria has no original jurisdiction in an action brought against 

the British High Commissioner in Nigeria, and that the action in 

respect of the High Commissioner and/or foreign envoy is 

incompetent, null and void. 

The Privileges and immunities of diplomats have been 

codified in several conventions. Some of these are: 

i The Vienna Convention on Diplomatic Relations, 1961 

ii. The Vienna Convention on Consular Relations, 1963 

58 See U.S. District of Southern District of New York, 30, 1946. 

59 (1980) N. S. C. C. Vol. 12 P. 265.

41 

iii. The Convention on Special Missions, 1969 

iv. Privileges and Immunities of the United Nations, 1946 

v. Privileges and Immunities of Specialised agencies, 1947 

vi. Convention on the Prevention and Punishment of 

Crimes Against Internationally Protected Persons, 

Including Diplomatic agents, 1973. 

Accordingly, international law has provided for the 

personal inviolability of diplomats who shall also not be liable to 

arrest or detention. This protection extends to his private 

residence, his papers, correspondence, and his property. 

The duty which the receiving State owes under 

international law as regards the inviolability of diplomatic 

premises and the jurisdictional immunity of foreign 

representatives is definite enough; manifestation of that duty 

however, is to be found in a municipal context. 60 Therefore, in 

the event of a breach of the duty, the sending state may have 

recourse through diplomatic Channels to an official protest, and 

even possibly the submission of a claim for reparation. 61 

The receiving state is required to ensure that the standards 

set by international law are met and may employ for the purpose 

60 Hardy, M., Modern Diplomatic Law, (Great Britain: Butler and Tanner Ltd.; 1968) 

PP 8-9. 

61 Ibid.

42 

whatever means or combination of means it chooses, whether 

administrative, legislative or judicial. 62 These restrictions placed 

on envoys go to make up that body of international and national 

law known as diplomatic privileges and immunities. 63 

1.9.2 Diplomatic Agent 

A diplomatic agent is a representative of his country in 

another which includes the head of the mission and any other 

member of the diplomatic staff of the diplomatic mission 64. 

1.9.3 Consular Officer 

A consular officer is a representative of his country in 

another usually in commercial matters. This includes the head 

of the consular mission entrusted in that capacity with the 

exercise of consular functions, and any other person entrusted 

in that capacity 65. 

1.9.4 Conundrum 

A confusing problem that is difficult to solve; a question 

involving a trick with words. 

62 Ibid. 

63 Ibid. 

64 Article 1 (e) of the 1961 Convention. 

65 Article 1(d) of the 1963 Convention.

2.1 INTRODUCTION 

43 

CHAPTER TWO 

EVOLUTION OF DIPLOMACY 

The term Diplomacy is derived from the Greek word “diploma” 

which literally means a double document. During the Greek period 

of history all passports, imperial letters were stamped on double 

metal plates folded and sewn together. Later the term came to be 

applied to all the official documents, which conferred certain 

privileges and immunities or rights under some mutual treaty. 

With the emergence of nation states, diplomacy took on a 

more multilateral level making it more complex and sophisticated 

and therefore creating a basis for distinct clear rules to govern and 

protect the class of people that are involved in diplomacy. 

With the birth of the United Nations Organisation and other 

related international organisations, diplomacy is no more confined 

to nation-states but extended to cover international organisations, 

in what may be known as parliamentary diplomacy. 

This section however attempts to look at a historical 

recapture of diplomacy from antiquity to contemporary times.

44 

2.2 THE ORIGIN OF DIPLOMACY 

Diplomacy in antiquity by its simplest term means the 

Practice of diplomacy in ancient times. There was no documented 

evidence of practice of diplomacy in ancient history, however as far 

as men could not survive alone economically and politically, there 

was the desire to enter into friendly relations with their neighbours. 

According to Nascimento do e Silva: 

Diplomacy must have originated once people 

of various background or culture made 

contact and sought to find a common ground 

for their dealings. 1 

The art of representation and negotiation from historical 

accounts can be said to be as old as social relations and began as 

soon as families, clans, tribes and peoples came into contact with 

one another and sought to regulate marriage customs and 

contracts, hunting, trade, navigation, communication, 

disagreements and wars. 2 Diplomacy then was ad hoc in nature. 

Archaeological research and interruptions of history show 

that cases of negotiations, alliances and coalition of various peoples 

exited since antiquity. Though there could have been no legal 

norms regulating diplomatic relations, emissaries who were sent by 

1 Nascimento, Loc. Cit. 

2 Gasiokwu and Dakas, op. Cit. P. 5.

45 

communities for negotiation and settlement of disputes enjoyed 

privileges and special protection based on religion. 3 Gasiokwu, 

quoting Harold Nicolson says: 

Even in prehistory there must have come 

moments when one group of savages, if only 

for the purpose of indicating that they had 

had enough of the day‟s battle, would like a 

pause in which to collect their wounded and 

bury their dead. 4 

The above quotation only helps to emphasise the need for 

negotiation even in those days to save man from total annihilation. 

Those who had to play these roles saw how dangerous they were 

and could never have accomplished them if not given some form of 

special protection or immunity. Summarily, diplomacy in antiquity 

was characterised by ad hoc diplomacy, military diplomacy and the 

art of peace treaties. 

In spite of “international” contacts in the ancient world, 

diplomacy as we know it today traces its roots to the Greek City- 

States. In the period 800 to 100 B. C., diplomacy evolved to a 

considerable degree in the atmosphere of competition of the Greek 

City-States. 

3 Ibid. 

4 Ibid.

46 

The smallness of these states, their nearness and lack of real 

strength meant that their survival depended upon the cleverness of 

their diplomacy. The Greek experience stressed the importance of 

immunity and negotiation. Greek diplomacy also evolved many 

terms such as conventions, alliance and reconciliation that are now 

used in modern diplomacy. 

In ancient Greece, there came into being a class of Permanent 

representatives known as “Proxenes” designated by one state to 

look after the interest of its nationals in another state. At first their 

function was to offer voluntary protection to foreign citizens, but 

later on states began to appoint them to perform both consular and 

diplomatic functions. They received emissaries from the sending 

states in order to present them to the authorities and courts of the 

receiving states, and also to facilitate their missions. They also 

helped in drawing up treaties and agreements. 5 

As early as the 4 th and 5 th century B. C. the Greek had 

evolved organised principles on such matters as the declaration of 

war, conducting peace, ratifying treaties in addition to having such 

forms as arbitrations, neutrality, exchange of ambassadors, 

5 Nicolson, H., Evolution of Diplomatic Methods, (New York: 1962) PP 19-20

47 

function of consuls and certain rules of war. 6 They had also worked 

out regulations observing and defining the status of aliens, the 

grant of naturalisation, the right of asylum, extradition and even 

maritime practices. 

Greek diplomacy in antiquity had developed four main types 

of diplomatic missions: 

(i) Missions undertaken to appease the other party, 

(ii) Those for resolving conflicts before wars were declared, 

(iii) Missions for soliciting support for a particular cause, and 

(iv) Trips undertaken by weaker city states to stronger ones to 

seek alliance or support from such powerful neighbour 7 

In line with what has been discussed already on Greek 

diplomacy, the empire was a cluster of peaceful villages which later 

graduated to city-states composed of sparta, Athens and a host of 

others summed under Delphi and Olympia. The Greeks practised 

ad hoc diplomacy through the organising of democratic groups 

formed either for developing trade and commerce or defending the 

empire from hostile aggressors. 

The Greeks loved a peaceful life and were mostly farmers, 

their attitude to strangers from foreign states was that of love and 

6 Gasiokwu and Dakas, Op. cit. P. 6. 

7 Ibid.

48 

friendliness. This attitude to strangers proved otherwise when they 

treated envoys sent by King Darius of Persia shamefully, due to the 

fact that the purpose of the visit was to spy out the land and not to 

make friends. 

In 480 B.C. King Xerxes of Persia made another attempt to 

capture the Greek after King Darius. The size of his men were too 

powerful for the Greeks therefore they decided that rather than go 

to war it was better to make peace. The Greek city - States sent 

selected diplomatic envoys to King Xerxes and a treaty of 

diplomatic relations was signed between the Greek empire and 

Persia. The Greeks sent another envoy named Themistocles who 

under the guise of friendship tricked Xerxes into taking a wrong 

naval tactic. This subsequently led to the destruction of Persian 

naval forces by the Greeks at Salamis. 

Alexander the great assumed the position as leader of the 

Greek-City-States and began the spread of Greek civilisation by the 

use of military might. He conquered Persia, Tyre, Egypt, 

Afghanistan, India and a host of others. 

Alexander the Great practised military diplomacy in 

conquered territories. Wherever he conquered he made peace and 

appointed some men to govern the place. In the case of Egypt,

49 

rather than fight Alexander, they sent envoys who signed friendship 

treaties with the Greeks. 

In India, King Porus first fought with Alexander but sensing a 

greater military superiority decided to sign a peace treaty. 

Diplomatic relations began and by virtue of friendship India built 

ships for Alexander and his men. At the peak of his campaigns 

Alexander later returned to Mesopotamia in Babylon where he fell 

sick and died, wine having been his greatest weakness. 

The Greeks did much to the development of diplomacy. They 

were the first to recognise that international relations had to be 

governed by rules. They evolved acceptable principles in state 

relations. 

Contributions to the development of diplomacy by Africans 

can be traced to Ancient Egypt, which is said to have contributed 

more to diplomacy in antiquity. 8 Egypt had contacts with the 

Mediterranean countries, Arab States, Babylon and India ever 

before the 4 th century B. C. Egypt sent and received trade 

delegations from these states with which she had contact. Numelin 

Ragner emphatically asserted: 

8 Gasiokwu and Dakas, op. cit. P. 8.

50 

For the first time among historical peoples, 

will regulated international connections; 

diplomatic envoys come and go; definite 

rules recorded for the reception and 

treatment of envoys and regulations to be 

followed when they were accredited to a 

foreign court. 9 

From about 3100 - 1085 BC Egypt concluded many trade 

agreements with foreign countries and held foreigners in very high 

esteem and there were special laws that protected their interests. 

It was said that: 

Property belonging to a foreigner that died in 

Egypt was considered safely held for his wife 

and children until a delegate arrives from the 

dead man‟s country to take his things. 10 

It seems the earliest recorded diplomatic intercourse of 

“international” relevance took place in the Nile valley. 11 The wealth 

of Egypt made it a focal point of commerce and thus brought it into 

contact with other people. The first treaty of which the full text was 

preserved was the one drawn up between Rameses II of Egypt and 

Hattusalis, the Prince of the Hittites. This treaty among other 

things, dealt with the extradition of deserters to their country of 

9 Ibid. 

10 Ibid. 

11 Anger, B. “Scope and Abuse of Privileges and Immunities by Internationally protected persons,” 

unpublished Thesis, Faculty of law, University of Jos, Jos, December, 1992, P. 15.

51 

origin, with the pledge that neither the guilty, nor their wives, 

mothers nor children will be put to death. 12 

Archaeological research has made discoveries which tend to 

show the existence of peaceful relations between the ancient 

Babylonian empire and neighbouring states. At that time, the 

kings and chiefs of these states were in constant correspondence 

with each other. Diplomatic envoys were allowed to come and go 

and there were standard practices for the reception and treatment 

of envoys. On major problems, formal agreements or treaties were 

decided upon between states. 

There were also evidences of diplomatic relations in Indian 

states in the ancient period. The Law of Manu (1200 BC) contained 

a series of rules for the king and ambassadors in dealing with other 

Indian States. In ancient India, envoys were sent to foreign courts 

either with the objective of making alliances or with the aim of 

obtaining military information that would be of use to their states. 

Ancient China during the Eastern Chou Dynasty (770-256 B. 

C.) made contacts with other parts of Asia. Problems were solved 

according to accepted principles and envoys were given instructions 

on how to act so as to maintain peaceful relations with other heads 


52 

of States. The teachings of legalists such as that of the prince of 

Shang brought organisation to the process of negotiation. 13 

Rome was at the Peak of its power before 476 A. C. Rome 

hardly practised diplomacy in the strict sense at this stage. 

Consumed with the conviction that its destiny was to dominate the 

world, it imposed the „pax romana‟ which was based on the 

principle that all nations had to be subjugated, if necessary by 

force or even total elimination as in the case of Carthage. She 

however maintained bilateral relations with some nations, which 

was achieved by intimidation and active participation of Roman 

envoys. 14 

Foreign envoys sent to Rome or by Rome were as a general 

rule respected. Fetiales (i.e. the Roman Priest in charge of 

management of functions Governing Roman relation with other 

nations) was known to have conducted negotiations, demanded and 

received respect for inviolability. They preferred organisation to 

negotiation and sought to impose a universal respect for their own 

system, oblivious of the fact that: 

13 Encyclopedia International, Vol. 6. P.33. 


53 

Diplomacy and negotiation flourish where 

the principle of reciprocity between 

sovereign...is acknowledged but languish 

and disappear in a relationship of inequality 

such as that existing under the Roman 

empire where one power predominated. 15 

The absence of reciprocity was exemplified by the 

contemptuous treatment of the Macedonia ambassadors who went 

to Rome in 197 B. C. The envoys had been told on arrival in Rome 

that if they were not able to conclude negotiations within 60 days 

that their diplomatic immunity would be lifted and they would 

hence be regarded and treated as spies and be conducted under 

armed guard to the coast. 16 

The contribution of the Roman Empire in the strict sense of it 

to the development of diplomacy came during its decline when it 

was forced to have recourse to diplomacy. In its decline, formalism 

and legal concepts it had created came to its aid as the last resort 

to a Rome threatened by other states up to the 18 th century. 17 The 

terminology of Roman law was accepted by writers in international 

law and the concepts it enshrined were used by European 

countries. 

15 Ibid. 

16 Ibid, P. 11. 

17 Anger, B. Op. Cit. P. 19.

54 

Up to the middle of the 15 th Century, the establishment of 

permanent missions was not very common. Diplomacy as a form of 

representation and negotiation also came into play as early as 1446 

when Francesco Sforza, Duke of Milan, appointed what is usually 

considered to be the first permanent secular embassy. He sent his 

secretary, Nicodemo da Pontremoli, to represent him at the court of 

the Medici in Florence. A similar appointment is also said to have 

been made earlier in 1375 by Ludovico Gonaga of Mantua. 

The Byzantine diplomatic method relied solely on playing off 

one potential enemy against another. They could not lay the 

foundation of a lasting value to the art but diplomacy of artifice 

which fostered deception and fraudulence and ironically 

established the pattern of diplomacy preferred by Europe; a pattern 

which ignored the purpose of true negotiation. 18 They were also the 

first to establish a special department of foreign affairs to receive 

and analyse reports and to carry out foreign policy through trained 

professional negotiators. 19 

Modern diplomacy, permanent diplomacy are some of the 

creations of Italian renaissance. The period of the renaissance was 

18 Gasiokwu and Dakas, op. Cit. P. 12. 

19 Ibid.

55 

the period of Cultural Revolution which cut across areas of arts, 

music, architecture, fashion, and the value system of the Italians 

spilling over to Western Europe. The renaissance had its 

foundation in Italy and the period was put at 1300 - 1450 A. D. 

After revolting against the rule of the Pope, they were no more 

unified in both politics and diplomacy. 

War was a continuous solution to gingering the morale of its 

populace. These wars were however not taken far off with efforts 

concentrated in between them. Perugia took Arezzo, Florence took 

Siena, Verona took Padua. The major powers ate up the smaller 

ones. 

The Italian distance away from Europe put her in a sort of a 

lost island as they had no contact with the realities of Europe. This 

made their diplomacy non-conscious and non-competitive. The 

nature and contents of wars this time changed to that of achieving 

financial and diplomatic gains so that soldiering went pari-pasu 

with diplomatic calculations. The diplomat came in to supplement 

the efforts of the military and to direct it. This time, the diplomat 

was valued more than the soldier. 

The demands of the Italian system led to the invention of the 

resident ambassadors who became very common in 15 th century

56 

Italy. They were the means for adjudicating the incessant conflicts 

and were effective. Commenting on the functions, Bernard Du 

Rosier said they were to remain in their posts in charge of all 

interests until recalled. The history of this development dates from 

the 12 th century practices. 

The Italian merchant had begun to cluster in colonies in the 

major commercial cities such as Levant and to appoint and come 

under the jurisdiction of consuls. The consuls acted as arbiters in 

mainly commercial areas and soon after, their home states started 

appointing them. By the 15 th and 16 th centuries however, the 

demands of diplomacy transcended purely commercial intercourse 

so that they needed ambassadors with wider powers. Milan, under 

Giagalenzo had the most effective diplomacy which she laid on both 

short and long term supporting them with its huge economic base. 

Diplomatic goals and gains were codified, making them 

substantive. 

Diplomats were treated with etiquette commensurate with 

ranks and given immunities and privileges. Crimes against them 

were treated as sacrilegious and as crimes against their states. 

By 1440, Italy was dominated by five major states. These 

were Venice, Florence, Naples, Milan and the Papacy with none

57 

strong enough to dominate the other. The scene of the Italian City- 

States this time was that of a system of independent states, co- 

existing by virtue of an unstable equilibrium for a crafty statesman 

to take given the power too. 

Florence and Naples sought for peace in the „most holy 

league‟ while Milan and Venice concluded the peace of Lodipact on 

30 th August, 1454. The aims were to guarantee against external 

and internal aggression and to stabilise the status quo of the 

Penisula. It lasted 25years with Provision made for renewals after 

expiration. It worked for some time until it collapsed again under 

the acts of states chasing after selfish political, diplomatic and 

military objectives. 

The most important contribution of the Italians on the 

development of diplomacy was the establishment of permanent 

diplomatic missions abroad with ambassadors living in the capital 

of the country to which they were accredited. 20 Other Italian 

contributions to diplomacy include the evolution of the procedures 

for negotiating treaties and apart from their regular treaties; there 

were also the protocols of Agreement, commercial treaties and even 


58 

attempts to establish maritime law. They also organised summit 

conferences. 21 

French language became the lingua Franca in diplomatic 

circles by 1559, when the principal role in European politics and 

diplomacy shifted to France. The outstanding figures at the time in 

France were Louis XIV Richelieu and Grotius. There was also a 

period when the study of diplomacy from a purely legal angle 

began, and books on the subject were written. Grotius‟ work is still 

considered to be of fundamental importance. 

The concept of previewing the art of negotiation as a long- 

term ongoing process rather than a short term plan was introduced 

by Richelieu. From then the French national interest became the 

primary consideration of diplomats, with its subsequent 

introduction of the system of domestic propaganda. 

Richelieu also introduced what was to be called the most 

essential of all the component of sound diplomacy - the element of 

certainty: the proliferation of responsibility and the dispersal of 

responsibility to different ministries which often bewilder 

negotiators and negotiation ended. Instead the direction of policy 

and control of ambassadors became the function of a single 

21 Ibid.

59 

ministry - External Affairs. 22 Today every country has a ministry of 

External or foreign Affairs. 

French diplomatic correspondence became the model of all 

diplomatic methods as Nicolson cited by Gasiokwu concluded that: 

The despatches and notes of French 

Ambassadors are superior in their lucidity to 

those of any other diplomats. 23 

The immense and unique contribution to the evolution of 

present day diplomacy by the French can again be seen from this 

quotation: 

The best adapted to the conduct of relation 

between civilised states. It was courteous 

and dignified: it was continuous and 

gradual. It attached importance to 

knowledge and experience. 24 

Contemporary diplomacy can be said to have started in the 

17 th century. From this period diplomacy underwent series of 

revolutionary processes differing from the practice during the Greek 

period, antiquity or even in the era of Italian city-states. The 

sending of envoys and maintaining permanent legation was already 

an accepted tradition in Europe at this time. The Treaty of 

22 Ibid. 

23 Ibid. 

24 Ibid.

60 

Wesphalia in 1648 was precisely the direct source of modern 

diplomacy. 

This Treaty confirmed the principle of balance of power in 

Europe and thus obliged states to keep watch on one another. The 

Treaty was seen to be the most important judicial instrument of the 

time, and most important laid the foundation for the development 

of international law and diplomacy by its recognition of the 

existence of European states as separate sovereign kingdoms, thus 

the evolution of diplomacy based on peaceful co-existence of the 

Monarchs. 

As lord Gore-Booth puts it: 

Diplomacy in this period proceeded 

according to well defined rules and civilised 

convention. It was personal and flexible and 

its style, while not without subtlety, was 

clear enough for all who took part in it to 

understand not only what was explicitly 

said, but what was to be taken for granted. 25 

By 17 th and 18 th centuries European Monarchs maintained 

missions abroad. They also made efforts to keep and improve on 

their diplomatic relations. Diplomats at this time however owed no 

allegiance to the people but to the kings personally. The negative 

25 Lord Gore-Booth (ed.), Satow’s Guide to Diplomatic practice (London: Longman Publishers; 1981) P. 

5.

61 

effect of this was that direct contact with the kings made diplomats 

to be involved in the internal affairs or political activities of the host 

countries, including at times plots to overthrow or assassinate the 

king. For example the Spanish and French ambassadors were 

caught involved in plans to overthrow or assassinate the reigning 

English Monarchs at various times. 26 

The Treaty of Westphalia created the problems of precedence 

since all monarchs were equal, and this created serious problems 

also of diplomatic blunder at various courts. The diplomats 

quarrelled among themselves as to who should come first as 

precedence, is an important diplomatic factor. Noteworthy, in 

London in 1661, a physical combat took place between the Spanish 

and French envoys when the coach of the Spanish ambassador 

tried to overtake that of the French. This unfortunate incident 

which even led to loss of lives and valuables resulted to the 

breaking of diplomatic relations between France and Spain for 

some time. 

Again in 1768 in London during a court ball, a French 

diplomat physically had to plant himself in front seat next to 

Austrian ambassador. He had to climb over the back benches to 

26 As cited by Gasiokwu and Dakas, op. Cit. P.15.

62 

insert himself in the front between the Russian and Austrian 

ambassador. This led to a fight in which the Russian ambassador 

was severely injured. 27 

In the dawn of the defeat of Napoleon in 1814, allied 

diplomats comprising Austria, in 1815 to settle the affairs of 

Europe as the turmoils of war had left the continent of 1815 

different from that of the 18 th century. Several states had ceased to 

exist while the boundaries of many others had been modified again 

and again hence there was an acute need for peace and a dire need 

for a balance of power to forestall the emergence of another 

Napoleon. The fore-mentioned powers discussed the terms of final 

peace and even entered into secret agreements before almost every 

part of Europe was invited to the congress, thus many decisions 

were already concluded before the congress opened. The congress 

proved to be one of the most important diplomatic gatherings in the 

history of Europe. 

On a final analysis, it can be deduced that European 

diplomatic services had become to some extent standardized prior 

to the 19 th century. However, it became more permanent and 

formal in the wake of the 1815 Vienna congress and subsequent 

27 Ibid.

63 

modifications at the Aix-la-chapelle conference in 1818. Annex 

XVII of the Treaty of Vienna (1815) serves as the bedrock on which 

the regulation on the Rank and Precedence of Diplomatic Agents is 

founded. It created a fixed international hierarchy of the 

professional diplomats who were to conduct international affairs 

throughout the century. 

The regulation established three categories of diplomatic 

characters namely, ambassadors, ministers and charge d‟affaires. 

Except for the minor change in nomenclature, present hierarchy of 

international actors is almost the same as contained in the Vienna 

Treaty. 

This gradual standardization of rules on the ranks of 

diplomats marked a great advance in the institutionalization of 

diplomacy. In fact, Vienna congress and the Aix-la-chapelle 

conference brought order in the diplomatic world. 

Apart from the above, the congresses marked a landmark in 

the annals of history of international law. Firstly, international law 

emerged since the realization of the importance of inter-state co- 

operation during the congresses because they dictated the need for 

decorum and orderliness which was lacking in pre-19th century

64 

Europe. In fact the congresses buttressed the symbiotic 

relationship between diplomacy and international law. 

In addition, pacific settlement of disputes, a major pre- 

occupation of present day diplomacy emerged as a result of these 

congresses. 

The concept of equality of states in international law was 

conceived. The provision in the preamble of the United Nations 

charter on equal rights of nations is a brain-child of these 

congresses. 

The congresses also heralded the principles of non- 

intervention in the domestic affairs of states, also enshrined in the 

United Nations Charter. It is pertinent to note that prior to the 

congresses, there was no regulation governing interference of 

powerful states in the domestic affairs of weaker nations. 

Finally, the congresses laid the foundation for the 

establishment of periodic conferences on matters of international 

concern. 

Multilaterality has become a main characteristic of diplomacy 

today. Improvements in means of transport and communication 

demand more multilateral solutions, for there are few problems 

which only affect two states.

65 

Modern diplomacy has diverse agenda and covers a wide 

range of human activities, involving state and non-state actors. 

These actors advance their interests through dialogue, 

correspondence, conferences, lobbying, negotiation, threats of war, 

and even acts of violence. 

The 1961 Vienna convention on Diplomatic Relations and the 

1963 convention on consular Relations are important landmarks in 

contemporary times.


66 

CHAPTER THREE 

ACTORS ON THE DIPLOMATIC STAGE 

International politics is a narrower field than international 

relations, owing to the fact that the former entails the struggle for 

power. While the latter connotes the sum total of relationships that 

take place in the international system. These relations include 

scientific, military, economic, cultural, social and political 

relationships. Various actors play these rather sensitive roles on 

the diplomatic stage. This chapter therefore examines who these 

actors are, how they play these roles and why the roles are 

necessary. 

3.2 ACTORS ON DIPLOMATIC STAGE 

Actors on the stage of International Diplomacy can be 

identified as any group of persons, individuals or entities that 

through their activities influence the operation of diplomatic 

practices on the international scene. In trying to identify the 

categories of actors in contemporary international diplomacy, Ojo 1 

1 Ojo, O et al African International Relations (New York: Longman; 1998) p. 20.

67 

has suggested that they should be regarded as actors; all 

individuals, groups and other non-state entities, which 

independently enter into transactions or relationships that have 

political consequences and at the same time, are international in 

scope. 

Until recently, states alone were thought to be the only actors 

of international diplomacy. This is because diplomacy, as earlier 

noted, comprises any means by which states establish or maintain 

mutual relationships, communicate with each other, or carry out 

political or legal transactions, in each case through their 

authorised agents 2. Brownlie 3 in addition maintains that diplomacy 

involves the exchange of permanent or at least regular 

representatives that are necessary for states to give substance to 

their membership of the United Nations and other major 

intergovernmental organizations and these representatives are in 

their own right actors since they personify the states. 

Broadly speaking, actors on the diplomatic stage differ just as 

the roles they play vary. But there is no doubt that states 

personified by their heads are the principal actors of international 

diplomacy. Because they are always at the head of any diplomatic 

2 Brownlie,1 Principles of Public International Law (London Oxford Press; 1979) p. 345 

3 Ibid

68 

intercourse but when they are not so doing, they send individuals 

who act as embodiment of the head and states as their delegates 

and representatives. Whatever, the head or representatives appends 

his signature to, commits the generality of the country. He is 

assumed to be a legitimate actor, being an embodiment of the 

whole people. 

Besides, a nation‟s foreign minister is a highly regarded actor 

on the diplomatic stage. Though he works in consultation with the 

head of state and others as the case may be, he is also a principal 

actor. He could commit his country into agreements and treaties 

or even sign laws that govern diplomatic conduct, as was the case 

with the Diplomatic Immunities and Privileges Act, Cap 99, Laws of 

the Federation of Nigeria, 1990. Other cabinet ministers are also 

actors when they are entrusted with the responsibility to act in that 

capacity. In such situations what they bind is assumed to be 

binding on their states because they are legitimately delegated. For 

instance, in the Diplomatic Immunities and Privileges Act, Cap 99, 

Laws of the Federation of Nigeria, 1990, the Minister of Finance 

most often refereed to as the “said Minister” could cause a 

regulation to be published in a government Gazette. This exempts 

some diplomatic agents or representatives of foreign sovereign

69 

powers from certain taxation and duties. On that basis, he has 

become an actor on the diplomatic stage. 

Beside these categories of persons, diplomatic and consular 

officers are also actors on diplomatic stage. A diplomatic agent and 

his legation personify the state he represents, an act against him is 

assumed to be an action against his state. In his position and 

according to the Vienna Convention on Diplomatic Relations of 

1961 4, he represents, protects, negotiates, ascertains by lawful 

means and promotes the interests of the state 5. He plays a major 

role on the diplomatic stage and most often he has been a target of 

assassination attempt, kidnap and even murder and thus a subject 

of diplomatic tussle between nations. For an actor on the 

diplomatic stage to be able to carry out the functions stated above, 

he needs some protection. In furtherance of this, both the 1961, 

and 1963 Vienna Conventions on Diplomatic and Consular 

Relations all have entries for his privileges and immunities but 

strictly for the efficient performance of his duties or functions. In 

this regard Articles 22, 29, 30, 31, and 33 of the 1961 Convention 

and Articles 27, 31 and 40 of the 1963 Convention are relevant. 

Besides, steps have also been taken as to the protection of the 

4 Article 3 

5. Ojo, O. Loc. Cit.

70 

International actor especially in the New York Convention on 

Special Missions 1969 and the Convention on the Punishment of 

Crimes against Internationally Protected Persons including 

diplomatic agents, 1973. 

Diplomacy in the modern world having become multilateral in 

scope and institutionalized in such organizations as the United 

Nations and its specialized agencies occurs in different shades 

performed by specialists and politicians. The issues they handle are 

many and intricate and according to Holsti 6, not only has large 

portions of diplomatic communication become channelled through 

multilateral institutions and organizations but also in bilateral 

relations, the institutional framework of communication has 

become increasingly complex as the range of issues common to any 

pair of states has expanded 7. 

Under this category could be found such international or 

inter-governmental organizations as the United Nations, the African 

Union and Organization of American States. These bodies play 

major roles in the course of relationship between nations, and their 

representatives are accorded immunities, privileges and protection 

6 Holsti, K. J. International Politics: A Framework for Analysis Englewood; 1977, p.56. 

7 Ibid. p.85.

71 

due for any other diplomat. For instance, the Secretary General of 

the U. N. is a powerful actor on the diplomatic stage. When 

conventions are fashioned by the body, the instrument of 

ratification is always deposited by every state with the Secretary 

General. 

Multinational corporations are also actors on the diplomatic 

stage. They are trans-national units that have had and continue to 

have significant impact on the international system. These 

corporations are according to Raymond Vernon, clusters of 

corporations of different nationalities that are joined together by a 

parent company through the bonds of common ownership, that 

respond to a common strategy and that draw from a common pool 

of financial and human resources 8. They sprawl across national 

boundaries linking the assets and activities of different national 

jurisdictions with an intimacy that seems to threaten the concept of 

the nation state as a sovereign unit. The massive wealth available 

to these companies, the magnitude of the operations and their near 

monopoly of the very sensitive technology give them a lot of 

influence in the world, even more than that exerted by many nation 

states. They have always played significant roles in the 

8 Vernon, R. Multinational Business and National Economic goal (middlesey: penguine Books;1977) p15.

72 

strengthening of relations between states and by their subtle 

manoeuvre, they have aided the overthrow of government. This is 

not a diplomatic act. But the mention of it helps to portray the 

ability of these oligopolistic corporations to affect nations where 

they find themselves. Their huge access to capital makes it easy for 

them to relate to the seat of power within the territory of the host 

state. 

According to Gilpin: 

American multinational corporations have 

also been regarded as a tool of diplomacy in 

most cases to the displeasure of their 

business leaders. The United States 

government has tried to manipulate or control 

the activities of American corporations in 

order to induce or coerce other government to 

do its bidding 9. 

The above quotation does not emphasize the official use of 

diplomatic tools within the international system. It however, shows 

the ability of these corporations to play their part from behind the 

scenes and use diplomatic subtlety to further their own good. Any 

government that ignores their behind-the-scene influence during 

certain negotiations does so at her own risk. 

9 Gilpin, R. The Political Economy of International Relations (Princeton: Princeton University Press; 1987) p.245.

73 

Other actors on diplomatic stage are the liberation 

movements, which are in fact classed as subjects of international 

law. They have been directly and indirectly involved in diplomatic 

deals and they can never be ignored. When they are not directly 

involved with the government they want to liberate themselves 

from, there is always a third part (government) sympathetic to their 

cause who is directly involved. They carry their struggle everywhere 

and seek diplomatic recognition. For long the PLO has been 

accorded observer status at the U. N. and her representatives 

accorded some diplomatic privileges. Similarly, the ANC‟s 

representatives have enjoyed diplomatic privileges in Africa and 

some other countries around the world. They have played a larger 

role in world politics than is usually acknowledged. 

Non-governmental bodies of international repute such as the 

Red Cross, Amnesty International, Ford Foundation, Rockefeller 

Foundation etc. are also actors on the diplomatic stage because 

their reports and activities have caused governments to do 

something to retrace their steps and actions against their citizens 

and those of other states. These organizations consist of individuals 

from various countries who share common interests and concerns. 

Although, these institutions are non political, their activities have

74 

on several occasions affected the political behaviour of states and 

other actors in the international system. 

It must be pointed out however that, individuals sometimes 

undertake certain actions without reference to their national 

governments, which are aimed at influencing the behaviour of other 

actors. 

It is on record that James Donovan, a New York Attorney, 

negotiated the exchange of prisoners held in Cuba, and arranged 

for the exchange of U. S. pilot, France Gray Powers, a convicted 

spy. The black American activist and Democratic Party nomination 

contender for the 1984 and 1988 United State Presidential 

elections, Jesse Jackson, negotiated the release of an American 

pilot whose plane was shot down over Syrian controlled positions in 

Lebanon in early 1984. 

The role played by Nelson Mandela in resolving the problem 

involving Libya, when she was under sanction for refusal to hand 

over two of her nationals for trial over the bombing of an American 

airline over Lockerbie, is worthy of mention. The suspects were 

eventually handed over after Mandela‟s intervention, while he was 

no longer president of South Africa.

75 

This calibre of individuals can be regarded as actors on the 

diplomatic stage because they are capable of influencing diplomatic 

opinion which equally depends on the status granted them by their 

states and other states. 

Effort has been made to illustrate the few examples of the 

contemporary individual manoeuvres in their private capacities to 

influence the course of world polities. And suffice it to say while 

the state still remains the most consistent and important actor in 

the international system, the increasing role being played by non 

state trans-national actor cannot be ignored. It is true that the 

actions of most of these non-state actors are directed primarily at 

influencing the actions of government, and are therefore important 

only to the extent to which they are able to achieve this. 

3.3 ROLES OF ACTORS ON DIPLOMATIC STAGE 

In this subhead, analysis of the role of actors is undertaken 

beginning with the state which had earlier been identified as the 

principal actor on the international scene. In pursuing their 

cardinal objectives internationally, states employ two forms of 

representations on diplomatic stage, namely permanent and ad-hoc 

representative diplomacy. Permanent diplomacy is characterized by 

the continued presence of the agents of one state in the territory of

76 

another state for the purpose of conducting diplomatic intercourse. 

This practice of allowing the agents of a foreign entity a perpetual 

physical presence finds legal expression in the New York 

Convention on Special Missions, 1969. 10 This permanent mission 

reflects: 

The establishment of a continuous physical 

presence of a state representative in another 

state, on the basis of mutual consent for the 

purpose of representing and pursuing the 

interests and goals of that states in the 

foreign state. 

It is pertinent to note that before the establishment of a 

permanent mission, both the sending and receiving states must 

reach an agreement. The second type of representation is the ad- 

hoc or temporary mission. As the name suggests, this type of 

mission has a specific purpose for which it is set up and winds up 

as soon as its task is accomplished. But one common feature with 

both missions is that they represent their state. Actors on 

diplomatic stage are agents for conducting international business 

and strengthening international relations. They are always the 

mouthpiece of their states or the institutions they represent. 

10 Article 4 (b).

77 

Actors on the diplomatic stage play the role of negotiators 

when the need arises, and which can take many forms. It could be 

for a treaty, peaceful settlement of disputes, or war. There are wide 

ranges of issues to deal with either with governments or 

individuals. 

3.4 METHOD EMPLOYED ON DIPLOMATIC STAGE 

The method employed on the diplomatic stage to achieve 

objectives varies just as actors and their objectives differ. These 

methods are simple because they are guided by the rules of 

international law. That for the purpose of this introduction, these 

method include among others, the following: 

3.4.1 Treaties 

Before 1969, the law relating to treaties was regulated by 

rules of customary international law. The work of the International 

Law Commission led to the codification and development of these 

rules. The work also reconciled some divergent views and practices 

relating to the law of treaties. This codification gave rise to the 

Vienna Convention on the Law of Treaties called the Vienna 

Convention on the Law of Treaties, 1969. It entered into force in 

1980. The Convention was however never intended to regulate

78 

every aspect of the law relating to treaties 11. Areas that are not 

provided for in the convention are therefore still regulated by rules 

of customary international law. 

Under the 1969 Vienna Convention, a treaty is defined as: 

An agreement whereby two or more states 

establish or seek to establish a relationship 

between them governed by international 

law. 12 

Generally speaking, treaty is regarded as a wide concept 

under international law and may include an oral exchange between 

states that gives rise to definite undertakings on their part. A treaty 

is known by so many names. It is called a convention, covenant, 

charter, or international agreement. A treaty may be between 

international organisations inter se or between an international 

organisation (s) and a state (s). However, the Vienna Convention of 

1969 does not apply to this category of treaties. The non- 

application of the convention does not however derogate anything 

from such treaties. 13 

Treaties create rights and binding obligations on state parties 

which they are expected to obey as one of the peremptory norms of 

international law. This peremptory norm of international law is 

11 See Preamble of the Treaty. 

12 Article 2. 

13 Article 3.

79 

commonly referred to as Pacta Sunt Servanda. It means that states 

are under a duty to carry out in good faith the obligations they 

have assumed under a treaty. This norm or jus cogens as it were 

has now been recognised by the Vienna Convention. 

A mere contract between a state and an alien or a foreign 

corporation is not a treaty and therefore not regulated by rules of 

international law affecting treaties. The contract may however raise 

issues of international concern. 

In the Anglo – Iranian case 14, Iran nationalised Anglo- 

American Company, which has concessionaire contracts with Iran. 

The British government challenged the nationalisation before the 

International Court of Justice. Iran, among other reasons objected 

to the jurisdiction of the Court on the grounds that British 

Government was not privy to the contract. The court upheld the 

objection. 

Treaties may be of alliance or economic cooperation or may 

relate to the sharing of jointly available resources or even to 

cultural exchanges, and should be written instruments 15. 

Furthermore, the U.N. Charter requires registration with a 

14 I. C. J. Reports (1952) p.93 at 112. 

15 Article 2 (1) (a).

80 

publication by the Secretary General of all treaties entered into by 

members of the UN 16. 

Many multilateral treaties entered into bind Nigeria as a 

subject of international law and which are now in force between her 

and so many other countries of the world. 

For instance, there are treaties in Force between Nigerian and 

such others as France, Brazil and some Latin American countries 

etc., on technology transfer or acquisition wherein Nigeria is expect 

to exchange industrial components with her crude. Meanwhile, 

treaties could be bilateral or multilateral, and more important is 

that, treaties can only be entered into by state actors or by 

legitimate actors on diplomatic stage. 

There is no uniformity as regards the form of treaties. The 

principal reason to this lack of uniformity is the reluctance of 

states to standardise the use of treaties. For this reason, there are 

many forms under which treaties are concluded and include: 

(a) Head of State 

Here the treaty is drafted as an agreement between 

Sovereigns or Heads of State. This form is commonly used in 

consular matters. 

16 Article 102 of the UN Charter .

(b) Inter-governmental 

81 

This is drafted as an agreement between Governments and is 

commonly used for technical and non-political agreements. 

Apart from the above, there are several other forms that a 

treaty may take but the nature or the form employed does not 

affect the binding character of a treaty. 

Like form, treaties go under a variety of names. Some of these 

names indicate a difference in procedure or degree of formality. 

Some of these names are: 

(i) Convention 

This normally refers to an instrument of a multilateral 

character and also includes instruments adopted by organs of 

international institutions. 

(ii) Protocol 

This is a less formal agreement than a treaty; it basically 

refers to a subsidiary instrument to a treaty drawn by the 

same negotiators. It normally deals with matters ancillary to a 

treaty. 

(iii) Declarations 

This may refer to an informal instrument appended to a 

treaty or convention for the purpose of explaining the

82 

provisions of the treaty or convention. It may be a resolution 

adopted by a conference spelling out principles to be observed 

by all the states concerned. 

(iv) Final Act 

This is the title of an instrument that records the proceedings 

of winding of a conference that has been summoned to 

conclude a convention. It also summarises the terms of 

reference of the conference, enumerates states or Heads of 

state in attendance and the delegates who took part in the 

conference. It also sets out declarations and 

recommendations adopted by the conference. 

(v) Parties 

Conventionally only states that have fulfilled the 

requirements of statehood at international law can be parties 

to a treaty. It is however common to see departments of 

government now negotiating treaties with other departments 

of government of other states. These modern developments 

have now made the strict application of that rule impossible. 

Treaties generally do not impose obligations or confer rights 

on third parties without the consent of such parties. This 

principle of law has been recognised by the Vienna

83 

Convention of 1969 17. There are however some exceptions to 

this general rule. These are: 

(a) Where the parties to the treaty intend to confer rights on third 

parties: state parties to a treaty are allowed to create third party 

rights in the treaty. This is however subject to the assent of the 

third party such assent will be presumed so long as the contrary is 

not indicated. Thus in the Free Zones Case, 18. The court 

acknowledged that: 

There is however nothing to prevent the will 

of sovereign states from having this object 

and this effect. The question of the existence 

of a right acquired under an instrument 

drawn between other states is; therefore one 

to be decided in each particular use. If must 

be ascertained whether the states which 

have stipulated in favour of a third state 

meant to create for that state an actual right 

which the latter has accepted as such. 

It is however opined that if the third party right is subject to 

assent, which can be withheld, then the concept of third party has 

very little significance. This is because by giving assent, it then 

means that the right becomes effective not really as a third party 

right. It will be because that third party has effected some 

17 Art 34-38 Vienna Convention, 1969 

18 PCIJ Reports (1932)P14

84 

participation of some sort. In such a case, it will not be totally 

correct to still regard him as a third party in the arrangement. 

(b) It has also been alluded that multilateral treaties, which are 

declaratory of established rules of customary international law 

might bind non-state parties. 

It is however argued that these non-states parties are bound 

by these not necessarily as a result of the treaty obligations but by 

the universality of the rules of customary international law. 

On the whole, it is very difficult in practical terms to get good 

and convincing examples of how third parties would become bound 

by treaty obligations. All that such states as third parties can do is 

to ensure that neither by their conduct or declarations they are not 

seen to have assented to the imposition of treaty obligations. 

The International Law Commission has stated clearly that 

assignment of treaty rights was not an institution recognised in 

international law. According to the commission, in International 

law, the rule seems clear that an agreement by a party to a treaty 

to assign either its obligations or its rights under the treaty cannot 

bind any other party to the treaty without the latter‟s consent. No 

doubt, rights and obligations under a treaty, which is purely of 

political nature or of extradition, cannot be assigned. However,

85 

Starke posits that rights and obligations under treaties where it is 

not expressly forbidden by the treaty provisions can be assigned by 

way of novation just as novation in contracts under private law. 19. 

A lot of reservation has been raised to this preposition, 

because novation under private law involves essentially a new 

arrangement where all the parties to the first agreement give their 

consent and some old obligations may be extinguished for new 

ones. If the same practice is to be extended under international 

law, then one can safely argue that the new arrangements amount 

to new negotiations altogether. 

Certain steps are taken to create obligations by way of treaty. 

These steps include: 

(a) Accreditation of representatives 

When states decide to negotiate treaty obligations, each 

contracting state appoints representatives who will negotiate 

on its behalf. These representatives are properly accredited to 

each other state and are fully equipped with the authority to 

negotiate on behalf of their state. Each representative is 

provided with a formal instrument given either by his Head of 

State or Minister for Foreign Affairs called Full Powers. The 

19 Starke, Op. Cit. P470

86 

Full Powers can authorise a representative to do several 

functions in relation to the treaty like negotiation, adoption, 

or the authentication of the treaty 20. 

In a conference to conclude a multilateral treaty, a committee 

is normally constituted for the purpose of checking and 

ascertaining the nature of Full Powers of every representative. The 

committee in turn reports to the conference. 

A representative can not go beyond his full powers. If he does, 

except his actions are subsequently ratified by his state, such 

actions will be void 21. 

Accredited delegates negotiate most multilateral treaties at 

diplomatic conferences. These delegates usually remain in touch 

with their home government as the conference progresses. In these 

diplomatic conferences, various committees are formed. Usually a 

prominent delegate is appointed as a rapporteur. The functions of a 

rapporteur among others are to assist the conference in its 

deliberations. 

Except two third majority of members in attendance decide 

otherwise, most decisions at these conferences are reached by vote 

of two third majority. 22 

20 Art 2 of Vienna Convention of 1969 

21 Art 8 of Vienna Convention of 1969

(b) Authentication signature and exchange of instrument. 

87 

After negations and adoption, a formal text of the treaty is 

prepared for signature. Signature normally comes at the formal 

closing ceremonies especially in cases of multilateral treaties. There 

can be an agreement to dispense with signature. Where there is no 

such agreement, signature is essential for the purpose of 

authenticating the text of the treaty. Since a treaty is a contract, its 

authentication is as agreed upon by the contracting states, or as 

approved in the treaty itself. In absence of any definite agreement, 

authentication must be by signature 23. 

The effect of signature depends on the nature of the treaty. 

Where the treaty is subject to acceptance, ratification or approval, 

signature simply means that the delegates have agreed with the 

text and are willing to accept it. 

Contracting parties to a treaty have an obligation of good faith 

to ensure that treaties subject to ratification are not frustrated. 

Where the treaty is not made subject to ratification, and in absence 

of any contrary intention, a treaty becomes binding upon signature. 


23 Art 10 of Vienna convenation of 1969

88 

Even in absence of ratification, some treaties make provisions for 

entry into force on a future date. 

(c) Ratification 

This is an international act whereby a state establishes on 

international plane its consent to be bound by a treaty. Under 

customary international law, ratification is a necessity to give effect 

to a treaty. Thus in the Mavromatis Palestine Concession case, 

Judge Moore was quoted as saying that the doctrine that treaties 

may be regarded as operating before ratification is obsolete and 

lingers as an echo from the past. 24 

This is however no longer the law. Under the Vienna 

Convention of 1969, ratification is necessary only if: 

(i) Treaty expressly provides so 

(ii) The negotiating parties agree that ratification is 

necessary 

(iii) The treaty has been signed subject to ratification. 

(iv) There is an intention to sign subject to ratification 

expressed in the full powers 25 

The philosophy of ratification is predicated on several 

grounds. Which include: 

24 Supra 

25 Art 14 of vienna Convention of 1969

89 

(a) Providing a state with an opportunity to comply with 

municipal constitutional requirements for adoption of the 

treaty 

(b) Enabling states to carry out public opinion before imposing 

obligation on itself under a treaty 

(c) Providing a state an opportunity to re examine and review the 

instrument signed by their delegates. 

International law does not impose any obligation on the states 

to ratify a treaty; in fact the power to withhold ratification is 

regarded as an incident of sovereignty. A state is not under any 

obligation to advance reasons for withholding ratification. 

Except the treaty itself otherwise provides, the instrument of 

ratification must be communicated to the other states concerned 

before the treaty can become binding 26. Exchanging or depositing 

the instrument of ratification among the contracting state parties 

amounts to the communication. If the treaty is carried out under 

the auspices of the United Nations, the instrument of ratification is 

deposited at the Secretariat of the United Nations under the control 

of the Secretary General of the United Nations. 

26 Art 16 of vienna Convention of 1969

90 

It is possible for the states that never participated in the 

negotiation of a treaty to become parties to it. This can be done 

through accession or adhesion. Accession refers to the acceptance 

of the provisions of the treaty without reservations. Adhesion 

means acceptance of some provisions subject to reservations. The 

requisite number of parties sometime uses the term accession to 

signify the ratification of a treaty by a state after it has entered into 

force upon ratification. 

The instrument of accession or adhesion must be deposited in 

the same manner as that of ratification. Accession or adhesion 

must be with the consent of the other parties. 

Entry into force depends on the agreement of the contracting 

parties as expressed in the treaty itself. Where ratification, 

acceptance or approval is required, the treaty comes into force after 

the instrument of ratification has been deposited. 

Most multilateral treaties fix a requisite number of 

contracting parties that will ratify before the treaty will come into 

force. Sometimes however precise date is fixed for the treaty to 

enter into force regardless of the number of parties that have 

ratified.

91 

All member states of the United Nations are required to 

register, as soon as possible, all treaties and agreements entered 

into by them with the secretariat of the organisation. The 

secretariat will in turn publish them. 27. Normally this publication is 

carried out in the United Nations treaty series. Non compliance 

with this provision does not however make the treaty or agreement 

void. The only effect is that, the parties before an organ of the 

United Nations cannot rely upon the provisions of such a treaty of 

agreement. What this means is that such a treaty or agreement 

cannot be used on the floor of the General Assembly of the United 

Nations, the Security Council of even the International Court of 

Justice. Since the United Nations has become the dominant and 

most important international organisation non-recognition of any 

treaty by its organs will definitely whittle down the importance of 

such an instrument especially where it is intended to be used in 

dispute resolution. The object of this provision is to discourage 

secret treaties and agreements among states. 

There comes the final stage of the treaty making process. In 

many jurisdictions, the treaty provisions are required to be 

incorporated into the municipal law of the state party before the 

27 Art 102 of the UN Charter

92 

provisions of the treaty can be enforced by such a state. Vigilance 

is sometimes required to ensure that states enforce provisions of 

treaties. 

A state is free to consent to be bound by a treaty subject to 

certain reservations. The reservations may be the exclusion of 

certain provisions or some modifications as the case may be. This 

is normally done either by expressly stating so in the treaty itself, 

by a separate agreement between the contracting parties or by 

making reservations. A reservation is defined as: 

A unilateral statement made by a state at 

the time of signing ratifying, accepting, 

approving or acceding to a treaty by 

purporting to exclude or modifying the legal 

effect of certain provisions of a treaty in their 

application to that state 28. 

The effect of reservation is to vary the legal effect of the 

provision of the treaty to which it relates in the reserving states‟ 

relation with other contracting parties. 

But the non-reserving states continue to observe the entire 

provisions of the treaty. Reservation is regarded as an incident of 

sovereignty and perfect equality of states. It is intended to allow 

states that cannot compromise on certain provisions of the treaty to 

28 Art 2 of Viennaz Convention of 1969

93 

participate in it rather than absolute exclusion. The form of 

expressing reservations differs. 

Under the Vienna Convention on Treaties, reservation must 

be in writing and duly communicated to other parties to the treaty. 

It cannot be effected if the main treaty prohibits it. 29 Reservations 

have created problems to state parties to treaties who would 

normally not have consented to certain treaties if they had known 

that such reservations would be entered by such states. 

International law has tried several measures to remedy some of 

these problems. When some states protested the reservation 

entered by some members to the Genocide Treaty, the International 

Court of Justice held in its advisory opinion that, reservations are 

allowable not withstanding the absence of provisions in the treaty 

permitting them and that assent to reservations may be by 

implication. 30 It was the opinion of the court that the effect of 

reservation depends on the compatibility of the reservation to the 

object of the treaty. Where the reservation is compatible with the 

objective of the treaty, the reserving state will still be regarded as a 

full contracting party to the convention. Even though the General 


30 Advisory Opinion to Genocide Convention, ICJ Reports (1951) p15

94 

Assembly has advised members to be guided by the court‟s opinion, 

the International Law Commission has suggested that in order to 

be admissible, a treaty must allow reservation in its provisions. 

In order to try and lessen these complexities, state parties to 

treaties try to provide in treaties how matters relating to 

reservations will be dealt with especially in multilateral treaties. 

After a treaty has been negotiated and concluded, certain 

conditions under which it was negotiated may change. These 

changes may necessitate some adjustment in the treaty to bring it 

in line with the changes. The means by which this can be effected 

is through amendment. In some treaties, clauses are inserted 

permitting some amendment at certain times under certain 

conditions. These clauses may even provide the procedures to be 

followed to effect the amendment. Many multilateral treaties allow 

amendment by majority votes of parties if unanimity for 

amendment can not be achieved. The Vienna Convention, 1969 has 

provided guidelines on amendment of treaties. 31 

States create obligations upon them by entering into several 

treaties. It is possible that by entering into several treaties, a state 

can find itself involved in obligations that are inconsistent. A treaty 

31 Art 40-41 of the Convention

95 

which is already in force, and has a latter treaty which has 

expressly made reference to the earlier one that this latter one is 

not to be considered as incompatible with the earlier treaty, the 

provisions of the latter treaty will prevail over those of the earlier 

one. 32 Where there is no reference to the earlier one, the provisions 

of that earlier treaty will continue to apply to the parties only to the 

extent to which its provisions are compatible to the latter treaty. 

The United Nations Charter has however provided expressly 

that the obligations created on the parties by its Charter shall over 

ride in the event of conflict between its charter and any other 

international instrument. 33 

For quite sometime, invalidation of treaties on grounds 

similar to those of the municipal law of contract like lack of 

capacity and absence of consent due to vitiating elements like 

mistake, fraud, duress or illegality remained controversial. This 

controversy appears to have been reduced as a result of the efforts 

of the Vienna Convention. The Convention has formulated six 

grounds for the invalidation of treaties. They are: 

1) Incapacity 

32 Art 30 Para 2 of the Vienna Convention, 1969 

33 Art 103 of the UN Charter

96 

A state can not seek to invalidate a treaty only on the ground 

that its representatives exceeded its treaty making powers under its 

domestic law. Such incapacity can be raised only if: 

a) It can be shown that the incapacity was manifestly evident to 

the other negotiating parties; 

b) The mistake concerned a rule of internal law of fundamental 

importance. 

In order to invalidate a treaty on the ground of excess of 

authority by the representatives, it must be shown that the 

restriction was notified to the other negotiating parties. 34 

2) Error 

A state can rely on error to invalidate a treaty only if it shows 

that the fact or situation constituting the error existed at the time 

the treaty was concluded and that the situation influenced it in 

giving its consent to the treaty. It is shown that the state itself 

contributed to some extent to the fact or situation, it will not be 

entitled to rely on it. If the situation is also such that the state 

concerned ought to have been put on notice, it cannot be heard to 

complain. 35 

34 Art 46 and 47 of the Vienna Convention of 1969 

35 Art 49 of the Vienna Convention of 1969

3) Fraud 

97 

Where a state has been induced by the fraudulent conduct of 

another state to give its consent to a treaty, it can rely on it to 

invalidate such a treaty. The difficulty that is involved is that the 

convention has not defined what constitutes fraud. 

4) Corruption 

If it is shown that a state‟s consent was obtained by corrupt 

means by another negotiating party, by influencing its 

representatives, the treaty can be voided on this ground. 

5) Coercion 

Where a state‟s representatives are threatened or forced 

through threats to give their consent to a treaty, that state can rely 

on the ground of coercion to void the treaty. 

6) Conflict with a norm of jus cogens 

A treaty is void if at the time of its completion, it conflicts with 

a norm of jus cogens. 36 

A state‟s right to void a treaty on any of the above grounds is 

lost if it is shown that the state itself has either expressly or by its 

conduct agreed that the treaty is valid. 

36 See page 12

98 

Once treaties are concluded and have entered into force they 

can be relied upon for resolution of the issues, which the treaty has 

set out to regulate. This is when the problem of interpretation may 

arise. As a general practice, multilateral treaties are normally 

authenticated in many languages. The United Nations Charter is 

authenticated in five languages. Where a treaty is drawn up in 

several languages, each version is equally authentic except if the 

treaty itself provides that one version shall prevail in situations of 

divergence. 37. 

Several principles, rules or canons of interpretation to be 

followed in the interpretation of treaties have been put forward by 

writers and international tribunals. Some of these principles 

include the grammatical interpretation and the intention of the 

parties, object and context of treaty, reasonableness and 

consistency and the principle of effectiveness. The principles 

however merely act as guides and may not be absolute. 

3.4.2 Negotiation 

The word negotiation is a derivation from the word negotiates. 

This is defined to be: 

37 Art 33 of Vienna Convention of 1969

99 

(1) Confer with others in order to reach compromise or 

agreement; 

(2) Arrange or bring about by negotiating; 

(3) Find a way over, through, etc. 38 

This definition points out that negotiation entails the peaceful 

resolution of a given situation. The words „confer‟ and „compromise‟ 

mean in this context, finding a way out of a situation using 

peaceful means. Seen from this perspective, negotiation is 

synonymous with diplomacy. 

Negotiation is viewed in international relations as a very 

crucial and important instrument used by agents to achieve both 

mutual and diverse aims and objectives. This is occasioned by the 

fact that as states emerge, the areas of possible cooperation 

between them widens with the result that participation in 

diplomatic intercourse especially in areas that are deemed of 

mutual cooperation could only be achieved through negotiation. A 

good example of negotiation could be seen from the role Nigeria 

played at the advent of the Economic Community of West African 

States- ECOWAS. In fact it took Nigeria much effort to impress 

upon other West African States before they could see the need for 

38 The Concise Oxford Dictionary, 1990, p.794.

100 

such a sub-regional economic organization. Negotiation involves 

the conduct of relations with different actors through diplomats or 

other representatives. The subject of negotiation can range from 

treaty to other important agreements – political, economic or 

technical. In practice, however, the more technical aspect of 

negotiation is left to specialists while the diplomats take care of the 

more formal part. 

Manner of negotiations depends largely on the disposition and 

character of the actors. It is note worthy that actors on the 

diplomatic stage can engage in negotiation, each employing the 

tactic within his reach, tactfully, and each trying to out manoeuvre 

the other to gain an upper hand in the deal. 

3.5 AN ANALYSIS OF FUNCTIONS OF DIPLOMATIC AGENTS 

From the traditional point of view, the functions of an envoy 

or diplomatic agent can be said to consist of representing his home 

state by acting as the mouthpiece of his government and as the 

official channel of communication between the government of the 

sending and receiving states. His functions would also include 

reporting on the conditions, and developments in the state where 

he is appointed to reside as well as protecting the interests of his 

home state and it national in the receiving state.

101 

The functions of a diplomatic mission re however clearly sated 

in broad heads in article 3 (1 a – e ) of the 1961 Vienna Convention 

on Diplomatic Relations in the following terms: 

The functions of a diplomatic mission consist inter alia: 

(a) Representing the sending state in the receiving state; 

(b) Protecting in the receiving state the interests of the sending 

state and of its nationals, within the limits permitted by 

international law; 

(c) Negotiating with the government of the receiving state; 

(d) Ascertaining by all lawful means conditions and 

developments in the receiving state, and reporting thereon to 

the Government of the sending state; 

(e) Promoting friendly relations between the sending state and 

the receiving state, and developing their economic, cultural, 

scientific relations 39. 

Reporting on conditions and development in the receiving 

state; though originally meant or refer only to political matters, 

would appear to include in the modern context cultural, social and 

economic activities of the country, and generally all aspects of life, 

which may be of interest to the sending state. 

39 Article 3 (a – e ) of the 1961 convention.

102 

Mr. Lansing, a former Secretary of State of the United States 

of America, once observed: 

Formerly diplomacy was confined almost 

exclusively to political and legal subjects and 

the training of the members of the 

Diplomatic Service was devoted to that 

branch of international intercourse. Today 

our embassies and Legations are dealing 

more and more with commercial, financial 

and industrial questions. 

These observations are even truer today than at the time they 

were made. A diplomatic representative does also perform 

functions, which were traditionally regarded as falling within the 

scope of consular functions. The Vienna Convention on Diplomatic 

Relations 1961 provides: 

A Diplomatic mission shall construe nothing in 

the present convention as preventing the 

performance of consular functions 40 . 

In fact, in matters of protection of the nationals of the sending 

state, the diplomatic and consular activities overlap to a large 

extent. There is at present some divergence in state practice as to 

how far commercial representation may be said to fall within the 

functions of a diplomatic envoy. While it is clear that protection of 

a country‟s trade relations would fall within the legitimate activities 

40 Article 2 (3).

103 

of a diplomatic mission, it is doubtful whether commercial dealings 

with the citizens of the receiving state even on behalf of the 

government could be regarded as included within the functions of a 

mission. By and large, the practice of states has been to treat the 

commercial counselors or attaches, who are the advisers to the 

head of the mission on commercial matters, as part of the 

personnel of the mission, but trade representative, who actively 

engage in commercial transactions, have not been so regarded. 

Their status, immunities and privileges are usually determined by 

means of bilateral agreements. 

3.5.1 Representing the Sending State in the Receiving State 

The first function of an envoy or a diplomatic mission is to 

represent the sending state in the receiving state, also to act as the 

channel of official relations between the governments of both 

states. To facilitate official communication between the states, the 

diplomatic mission is often called upon to perform the task of 

negotiating with a communicating his government‟s viewpoint on 

various matters to the government of the state to which he is 

accredited. The diplomatic representative is the official agent and 

the mouthpiece of his government. Communications between 

governments are generally of a varied type and on a variety of

104 

subjects. They range from negotiations relating to conclusion of a 

treat between the states concerned to making of representations on 

behalf of their nationals as well as soliciting support for the 

respective polices and view points of the governments on world 

affairs. The credentials which he is given on his appointment, and 

which he carries with him to his post makes this position clear by 

conveying a request in the name of the head of the sending state to 

the head of the receiving state to give credence to him and to all 

that he say in the name of his sovereign or his government (Art. 13 

of the Vienna Convention on Diplomatic Relations). 

In the international community of today, with the growing 

interdependence of nations, the need for mutual consultations 

among governments have proved to be of much greater importance 

then it was in the part, and in this sphere the diplomatic agent 

plays an important role. 41 

3.5.2 Negotiations with the Government of the Receiving State 

Whenever a government wishes to enter into a treaty with 

another, whether it be a treaty of extradition, or an air agreement 

relating to flights of its aircrafts, the formal negotiations are often 

41 Sen, B. A Diplomatic Handbook of International Law and Practice (London:Nijhoff Pub.; 1979) P.49

105 

proceeded by preliminary soundings and exploratory talks which 

have invariably to be conducted by the diplomatic agent. The 

actual negotiations for a treaty may sometimes be entrusted to a 

special mission, especially if the subject matter is of a technical 

nature. It is however, obvious to those who have anything to do 

with the international affairs of a state that long before the 

negotiations start, much careful preparation and planning on the 

part of the diplomatic envoy is necessary. From the time he 

receives initiation from his home government regarding their 

interest in the conclusion of a particular treat, the work of the 

diplomatic agent begins. He is to proceed cautiously and tactfully, 

and in the beginning, informally perhaps by throwing feelers to see 

whether the government of the receiving state is at all interested in 

principle to the conclusion of such a treaty. 

In cases where a government wishes to obtain some privileges 

or advantages for its nation in the receiving state, whether it is in 

respect of their commercial interests or otherwise, the approach is 

generally made through the Diplomatic envoy. Similarly, it is the 

diplomatic envoy that has to negotiate with the government of the 

receiving state in all matters where his government wishes to 

represent or prefer a claim on behalf of one its nationals on

106 

account of his having suffered hare or injury. Other areas which 

the diplomatic agent has to negotiate with the government of the 

receiving state include lodging of protests as a method by which a 

government shows its disapproval of the particular action on the 

part of the other or its agents. His functions also include 

Interpretation of Viewpoints and soliciting support, which is, 

explaining the point of view and the policies of his government and 

in soliciting support of the receiving state on the problems with 

which his government may be concerned. 42 

must be: 

Ambassador Grew of The United States once said that he 

First and foremost an interpreter, and his function of 

interpreting acts both ways. First of all, he tries to 

understand the country which he serves, its conditions, 

its mentality, its actions and its underlying motives, 

and to explain these things clearly to his own 

government. And them contrariwise, he seeks means 

of making known to the Government and the people of 

the country to which he is accredited the purposes and 

hopes and desire of his native land. 

This certainly summarizes accurately the position of an 

envoy. A recent trend, which has been marked since world war II, 

that governments often seek support for their points of view from 

other nations in respect of their claims or international disputes in 

42 Ibid. pp. 48 - 49

107 

which they say he involved, the reason being that in the 

international community of today, world opinion has become a 

powerful factor which cannot be ignored even by the most powerful 

of nations. This, states often find it necessary to explain their case 

on territorial claim, border disputes, and other issues which may 

give rise to controversy with another nation, and seek support for 

their case. It falls on the diplomatic agents to perform this task. 43 

3.5.3. Protecting in the Receiving State the 

Interests of the Sending State and its Nationals 

Protection of the interests of the sending state and its 

nationals is one of the primary duties of an envoy. The interests of 

his home state, whether it be on the political field or it be related to 

commercial matters, are entrusted to his care and an agent has to 

be over vigilant in order to protect such interest in the state to 

which he is accredited. The interests of a state in its relation to 

other states range from territorial questions as between neighbours 

to trade and commerce, flights for its aircrafts, preferential tariffs 

for its produce, financial and military aid, investment sin industrial 

projects, and facilities for its citizens. As a diplomatic agent, he 

has to take all possible steps and precautions to see that any 

43 Ibid.

108 

existing advantage which his government or his nationals may 

enjoy in the state of his residence is not jeopardized. 

He has also to seize at every opportunity of increasing such 

advantages. His government may enjoy a position of confidence 

with the government of the receiving state; or it may be that the 

produce of his country is allowed entry at a preferential tariff or 

that the nationals of his home state are allowed freely to reside, 

carry on trade, or invest their money in that country. 

Protection of the interests of the nationals of the envoy‟s home 

state falls broadly under two heads, namely, promotion of their 

interests generally in the matter of immigration, trade residence, 

travel etc. The other being, protection accorded an individual 

citizen, if he suffers harm or injury to his person, life or property in 

the receiving state. The first category of cases may be said to be 

included within the envoy‟s function of protection of the interests of 

the sending state itself, while the second would fall within the right 

of a state of rendering diplomatic protection of its citizens abroad. 44 

However, an envoy‟s functions relating to protection of nationals of 

the home state shall be within the limits permissible under 

international law as laid down in the Vienna Convention of 1961 on 

44 Ibid. Pp. 60 – 61.-

109 

Diplomatic Relation. Article 41 (1) of the 1961 convention for 

example does not permit the envoy to protect his citizen by acts 

inimical to the constitution of the receiving state. 

In making any representation to the government of the 

receiving state to allow entry to nationals of his home state or to 

permit such of those nationals as may be resident in the receiving 

state for the purpose of trade or business to continue to reside 

there and pursue their occupation, an envoy has to take into 

account that according to the generally accepted views of writers on 

international law, 45 which is also borne out by the practice of the 

states and the decisions of national and international tribunals, it 

is the sovereign right of a state either to admit or to exclude an 

alien from its territory. In order, therefore, to safeguard the rights 

of their citizens and to ensure their entry into the territory of other 

states in advance, states have sometimes entered into treaties of 

friendship and commerce wherein the right of entry by each citizen 

has been guaranteed. In some countries, the law in practice allows 

free entry and right of residence to nationals of a certain group of 

states. For instance, citizens of Commonwealth countries, until 

recently, were allowed to enter Britain and reside there for any 

45 Lauter Pacht, H. Oppenheim’s International law Vol. I 8th ed. (1955) pp.675 –678.

110 

period they liked without any restriction. The British national also 

enjoyed a similar right in all the Commonwealth countries. 

Perhaps the more important function of an envoy in the 

matter of protection of the interests of his nationals which is likely 

to arise often, is to afford protection to their lives and properties in 

individual cases or collectively, and to afford them such assistance 

as they say need 46. To a person who is resident abroad the 

diplomatic agent of his country is his friend in need. And it is to the 

envoy that he has turned when he suffers harm or his interests are 

adversely affected either by reason of some action of the 

Government or governmental agencies or in the hands of a private 

person. Thus in the case of a riot or civil commotion the diplomatic 

agent will be well within his rights to ask the government of the 

receiving state to take adequate measures to protect the lives and 

proprieties of his citizens and to protest to the government if it fails 

to do so. For instance during the Liberia crisis early 1990, as a 

result of high tension, the American Ambassador there organized 

for the airlifting of the American nationals from Liberia. Also during 

the Kano crisis of early October 1991, the American diplomatic 

46 Rosalyn Higgins, Op.Cit. P.642

111 

agent monitored the events there and directed their citizens on 

what to do at the appropriate time. 

3.5.4. Ascertaining by all Lawful means Conditions and 

Developments in the Receiving state and Reporting 

Thereon to the Government of the Sending States 

An important point, which arises in this connection, is the 

means an envoy should employ to ascertain the conditions and 

developments in the state of his residence in order to enable him to 

give a true picture to his government. The 1961 Vienna Convention 

on Diplomatic Relations provides that an envoy should ascertain 

the conditions and developments by lawful means 47. However, it 

gives no guidance as to what should be regarded as lawful. In 

countries with a democratic form of government, where freedom of 

the press is respected, the newspapers would form one of his most 

useful sources of information. The news items on both local and 

foreign events together with editorial comments, the reports of the 

speeches of Political leaders on domestic and international issues, 

policy statements by members of the government and 

parliamentary debates would provide him with much useful 

material not only in the conditions and development inside the 

47 Ibid.

112 

country and the view points of the political parties on such matters 

but also the country‟s attitude towards events of international 

importance. The newspaper comments are of significance in more 

was than ones since in democratic countries the press is often 

known to mould public opinion. An envoy will, therefore, do well to 

subscribe to the leading newspapers of the country especially if 

they represent varying political opinions. In addition to newspaper 

reports, it would be useful for him to attend occasionally sittings of 

the parliament especially when debates are held on important 

matters of policy following upon a statement from a member of the 

government. The press conference held by the heads of 

government and it is now customary to invite the press attaches of 

the diplomatic missions to such conferences. 

A diplomat has to find out many things informally, especially 

matters regarded as of confidential nature or too premature for 

public disclosure including matters which are of little interest to 

the reader of the daily newspaper but one of sufficient interest to 

an envoy in making his assessments and inclusion in his periodic 

reports. Occasionally he may obtain information on certain matters 

directly from the officials of the government by seeking an interview 

for the purpose. In fact the diplomat should cultivate a wide range

113 

of social acquaintances which would include the officials of the 

foreign office and other government departments, his own 

colleagues in the diplomatic corps and a variety of other such as 

newspaper editors, journalists, parliamentarians, leaders of 

political parties, industrialists, and businessmen. 

In Europe, diplomatic representatives were regarded as 

honorable supply as they supplied the information necessary to 

guide their respective governments in shaping their foreign policies. 

It was for this reason that King Henry VII of England was 

disinclined to have an ambassador of any foreign king within his 

realm though he himself occasionally sent ambassador to transact 

state business with foreign rulers 48. In modern times, however, an 

envoy‟s right to report to his home government on the conditions in 

the state to which he is accredited is not only regarded as 

legitimate but also considered to be in the mutual interest of 

nations. Advance information regarding the political instability of a 

regime or the possibility of Coup d‟etat can help a country to keep 

itself prepared for reception of refugees so that by a sudden influx 

the internal economy of the state is not upset. 

48 Anger, B.A. Op. Cit. Pp.68-9

114 

Though an envoy‟s chief concern is and must be on the 

political sphere, however, since everything else in a country must of 

necessity be dependent upon the political stability of the state. The 

diplomatic representatives cannot overlook the economic and 

commercial aspects while reporting on the conditions and 

developments in the state to which he is accredited. The position of 

trends and commerce as well as economic development in country 

are of considered interest to other countries, and indeed such 

matters have assumed an increasing importance in the relations of 

nation in the present day. 

3.5.5. Promoting Friendly Relations Between the 

Sending State and the Receiving State, and Developing 

their Economic, Cultural, and Scientific Relation 

Another important function of an envoy is promoting friendly 

relations between the peoples of the sending and the receiving 

states. During the last few decades and particularly since the 

establishment of the United Nations, it has been recognized that an 

envoy‟s function must include the active promotion of 

understanding between the sending and the receiving states and 

their peoples as also promotion of their economic, cultural and 

scientific relations. An envoy‟s task in promoting understanding

115 

between the two states, involves not only in his dealing with the 

government of the receiving state but also in explaining the policies 

and practices of his government and their view point to the people 

of the country through suitable media. As well as making known to 

the government and the people purposes, hopes and desires of his 

native land. One of the most effective ways of doing this is for the 

envoy to speak on as man occasions as possible and to arrange for 

its proper reporting. Today, diplomatic representatives are often 

invited to speak on public occasions and particularly on occasions 

where a special programme featuring his country is arranged. Many 

countries welcome such public contacts of ambassadors which 

facilitate the means of creating understanding. In Britain and the 

United States, television interviews are often arranged with the 

head of diplomatic missions. In India, the all India Radio had for 

sometime organized a fortnightly programme of „Lands and people 

in which every head of mission was invited to give a talk about his 

country. 

In addition to the various functions of a diplomatic agent 

discussed above, there are other functions which the diplomatic 

missions have also to undertake, such miscellaneous duties 

include registration of births, deaths, and marriages, also

116 

maintenance of Register of citizens, authentication of documents, 

service of summons and issue of passports and Visas which are 

generally performed in the consular sections of the missions and 

may also be undertaken by consular officers. 

The registration of birth by the diplomatic mission is 

necessary because the municipal laws of almost all states consider 

the children born to their citizen even when abroad as their 

nationals for the purpose of evidence of such birth most of the 

nationality laws require that the parents of the children born 

abroad should have the birth registration in the embassy or 

consulate of the home state 49. The diplomatic missions are 

therefore authorized under the laws of the sending state, which are 

recognized invariably by the receiving state, to register the birth of 

the children of their own nationals and also to issue certificate of 

birth. The laws of several states also authorize their diplomatic 

officers to perform the functions of a registrar in solemnizing 

marriages between parties at least one of whom is a citizen of the 

sending state. The mission in such cases is entitled to issue a 

certificate of marriage. It is customary for diplomatic missions to 

49 Anger, B. and Jande, G. Basic Principles of International Law ( Makurdi: Bencos Printing & Pub. Co.; 2002 ) P. 110

117 

maintain a register of the citizens of the home state. And it is 

advisable for persons resident or sojourning abroad to get 

themselves registered with their embassy or consulate; this in fact, 

helps in ensuring that diplomatic protection can be afforded to 

them readily in case the need arises 50. 

The diplomatic missions also act as the channel of 

communication for service of summons issued by the courts of the 

sending state, for instance, when a suit is instituted in the court of 

a country against a person resident outside, it becomes necessary 

to serve him with a write of summons issued by the court to appear 

and defend the action. This function is carried out in cases where 

there is an agreement in force between the two countries for service 

of summons and reciprocal enforcement of judgments. Also in 

cases of fugitive criminals who have fled from the sending state 

after committing a crime there and taken refuge in the receiving 

state, the diplomatic mission have also to handle requests for 

extradition. However, issue of passports and visas, in all 

probability, constitute the bulk of the consular work of an 

embassy. 51 

50 Ibid. 

51 Sen, B. Op. Cit. p. 75.

118 

3.6 AN APPRAISAL OF FUNCTIONS OF CONSULAR OFFICERS 

In general, the privileges of consuls under customary 

International Law are less settled and concrete, than those of 

diplomatic envoys. The Vienna Convention of 1963 referred to the 

above, sought to extend to consuls the majority of the privileges 

and immunities applying under Vienna Convention on Diplomatic 

Relations of 1961, though subject to adjustment in the case of 

honorary consuls. 52 

In modern times the tendency of states is to amalgamate their 

diplomatic and consular services, and it is a matter of frequent 

occurrence to find representatives of state occupying, concurrently 

diplomatic and consular posts. The establishment of consular 

functions emerges as a result of the need for mutual coexistence in 

commercial activities between states. 

3.6.1 Appointment, Classification and Status of 

Consuls 

The appointment of consuls is similar to accrediting of 

diplomats, except that the document, which the consul presents to 

52 Based on Art. 2 of the 1963 Vienna Convention, consular officers are of two categories, namely career consular officers and honorary consular officers. The Convention 

chapter II apply to consular posts headed by career consular officers; and the provisions of chapter III govern consular posts headed by honorary consular officers.

119 

the receiving state, is a commission and the recognition of him is 

by means of an exequatur, which the host government issues. 

Though appointment generally is political in nature, states 

appoint people who are respected in the society. 

In the United States: 

Posts of prime importance are often held by 

people of distinguished standing in public 

life, nearly always drawn from the political 

party in power. 53 

Furthermore the British Service regulation states that: 

In regards to appointment whatever in the 

service, the Secretary of State will be free to 

make any such selection as, on his own 

responsibility, he may deem right, without 

being bound to claims of found on seniority 

or membership of service. 54 

The consular commission is different from the „Letter of 

Credence‟ given to a diplomat in the sense that it is not addressed 

to the head of state of the receiving state. It is sent to the 

government of the receiving state through the diplomatic channel. 55 

A consul starts his function when he is granted an exequatur by 

the receiving state 56. 

53 Satow, E. Guide to Diplomatic Practice (London: London Group Limited; 1979 p. 201. 

54 Starke J. G. Introduction to International Law (London: Butterworths ; 1989) P. 77. 

55 Article 11 (1) (2). 

56 Article 12 (1).

120 

A consul may be declared persona non grata by the host state 

and the state is not obliged to explain the reason for so doing 57. 

Consuls are graded into four classes by the 1963 Vienna 

Convention 58. They are summarized thus, consul – general, who is 

either metropolitan of several consular districts or head of 

important districts, consul, vice consuls, who are not independent 

but are usually distinguished from consuls proper on the following 

grounds: they are unpaid, temporary, untrained, part-time, and 

sometimes of the nationality of the receiving country. 

Consuls are enjoined to respect the laws of the receiving 

state. They are not to carry on professional or commercial activity 

for personal profit 59. 

Consuls often perform diplomatic or political functions not 

only in a state where there is no diplomatic mission but also, by 

necessity. The Vienna Convention of 1963 provides that consuls 

may with the consent of the receiving state, and without affecting 

their consular status; perform diplomatic functions, if the sending 

state has no diplomatic mission in the third state. Such 

57 Article 23 (1) . 

58 Article 1. 

59 Article 55.

121 

performance however, shall not accord them diplomatic privileges 

and immunities. 

For effectiveness, to discharge their duties without hindrance, 

consuls should be accorded privileges and immunities as 

diplomats. The 1963, Vienna convention on consular relations 

provides that where members of diplomatic mission are assigned to 

function as consuls, their names shall be notified to the Ministry 

for Foreign Affairs in the receiving state 60. Their privileges and 

immunities however, shall continue to be diplomatic rather than 

consular 61. 

3.6.2 Functions 

There are some differences in the functions of diplomats and 

consuls, though in some respects theirs duties and function 

overlap. This will be analysed on the major headings below: 

60 Article 70 (2). 

61 Article 70 (4). 

(i) Representation of sending state in the Receiving State: 

Sen observes that the principal function of a diplomat 

is: 

From the traditional point of view… 

representing his home state by acting as the 

mouthpiece of his government and as the 

official channel of communication between

122 

the governments of the sending state and 

receiving state. 62 

Both the diplomat and the consul are representatives of the 

sending state in the receiving state. The difference here is that the 

diplomat is recognized as the political agent of his state in the 

sense that, he enters into agreement on behalf of his home 

government with the government of the receiving state, while the 

consul does not. The consul is a representative of his state in the 

sense that he represents the business interest of his state. 

(ii) Protecting the interest of the sending state and its 

nationals in the receiving state: 

One of the primary duties of an envoy is protection of the 

interest of his state and also its nationals in the receiving state 63. In 

protecting the interest of the sending state and its nationals in the 

receiving state, the activities of both consuls and diplomats overlap. 

This function is political. Lee observes that the duty of a consul is 

as a result of the fact that: 

…the “economic” sphere has gradually been 

absorbed into political and the traditional 

distinction between the two has lost much of 

its original meanings and significance. 64 

62 

Sen B. Op. Cit. p.66. 

63 

Article 3 (b) of the 1961 Vienna convention on (Diplomatic relations and articles 5(a) (1) and (h) of the 1963 Vienna Convention on 

consular Relations. 

64 

Lee, L. T. Vienna Convention on consular Relations(A. W. Sijhoff-Leyden: Rule of Law Press; 1962) P.58.

123 

In protecting the interest of the sending state and it nationals, 

the diplomat can go directly to the head of the receiving state to lay 

complaints, while the consul can only report to the local authority 

and if need be he reports to the diplomatic mission and then the 

complaint to the head of the receiving state. In matters such as 

citizens of the sending state not being treated fairly, border dispute, 

trade, commercial or other political matter, flights for aircraft, 

financial and military aid, investments in industrial projects and 

facilities for citizens. 

The envoy is interested in the protection of interests generally, 

immigration, trade, resident travel, etc. He ensures protection from 

harm or injury to the person, life and property of his fellow - 

nationals. 

The envoy intervenes on behalf of his nationals residing in the 

host state, in the areas of trading, business, schooling or 

professional work, who want to stay for a long period of time. The 

diplomat comes in handy here because he can have direct contact 

with the head of the receiving state.

124 

In all these aspects the diplomat and consul protect the 

interest of their state and its citizens. Thus it is obvious from the 

discussion so far, that their activities overlap. 

(iii) Negotiation: 

Whenever a government wishes to enter into a treaty with any 

government, be it friendly, commercial, extradition etc, it is the 

diplomat who conducts it on behalf of his government, as its 

representative accredited to the receiving state. 

A consul also negotiates with people of the receiving state on 

behalf of his nationals, but it is strictly on commercial basis. In 

lodging protects, the host government lodges its protests through 

the diplomats to the receiving state if dissatisfied with the attitude 

or action of the government or it agents. 

The difference here is while the diplomat is more concerned 

with questions of politics and with negotiations with the central 

government on issues such as customs barriers; etc the consul 

negotiates with local traders or businessmen within the consular 

districts. 

Articles 3 (d) of the 1961 Vienna Convention on Diplomatic 

Relations and 5 (c) of the 1963 Vienna Convention on Consular 

Relations are also similar in the sense that both envoys reports

125 

back to their home government. Both are representatives but in 

different aspects; political and commercial respectively. 

Sen rightly observes that, governments are largely dependent 

on their envoys for giving correct reports of facts and situations 

from which such matters can be judged or predicted. 65 

(iv) Promotion of Friendly Relations, Commercial Economic, 

cultural and Scientific Relations. 

Another important function of an envoy is promoting friendly 

relations between the people of the sending and the receiving 

states. The importance of this function is also highlighted in the 

U.N. Charter as part of its aims 66. The diplomat and consul‟s 

functions include active promotion of understanding between the 

sending and receiving states and their people, the promotion of 

their economic, cultural and scientific relations and differences. 

Due to the nature of their jobs and location of post, the consul gets 

to meet more people than the diplomat and as such is in better 

position to carry out this function properly. 

There are also many other functions, which traditionally are 

performed exclusively by the consuls, except as otherwise stated 

below. These are the distinguishing factors in the functions of the 

65 Sen, Loc. Cit.

126 

diplomats and consuls as outlined in the 1963 Vienna Convention 

on Consular Relations, and they are as follows: Articles 5 (d) 5 (1), 5 

(k), 5 (L) and 5 (M). 

3.7 FACTORS THAT ENGENDER THE VIOLATION OF 

DIPLOMATIC IMMUNITIES 

Diplomatic agents and other persons entitled to special 

protection under international law are increasingly becoming the 

victims of such crimes as murder, kidnapping and assaults which 

most often are politically motivated and used as tools of 

subversion. Although, diplomatic immunities are not necessarily 

absolute, they are not just violated. Our concern here is on the 

factors that cause the violation of immunities, we would be looking 

at these factors closely as they lead to actual violation of diplomatic 

immunities. 

First, one act that very much engenders the violation of 

diplomatic immunity is that of diplomatic abuse. As contained in 

the 1961 Convention: 

66 See Article 1. 

It is the duty of all persons enjoying 

privileges and immunities to respect the 

laws and regulations of the receiving state.

Also: 

127 

They also have a duty not to interfere in the 

internal affairs of that state. 67 

The premises of the mission must 

not be used in any manner incompatible 

with the functions of the mission. 68 

Implied in these provisions is that any act contrary to the 

letter of this article could cause that violation of immunity. So, 

such act like undisguised espionage activities cause the violation of 

immunity. Meanwhile, recently the son of Iraq‟s ambassador to 

Nigerian was beaten up by security personnel 69 for traffic 

violations. 

The opinion here is that beating up the son of an ambassador 

who enjoys the same immunity as his father, his contrary to 

diplomatic and consular law and an apology given will be 

appropriate. Sometimes compensation and apology are necessary 

and appropriate. 

National policy could lead to the violation of diplomatic 

immunity. The US national policy towards Iran caused 70 the 

Iranian mob to storm into the American Embassy in Tehran in 

67 Article 41 (1). 

68 Article 41 (3). 

69 Champion Newspapers, vol. 5, No. 4, 2 nd Feb. 1992 pp.1 and 3. 

70 Sergei Loser and Yuri Tyssovsky , The Middle East Oil and Policy (Moscow: Progress Publishers; 1980) p. 177.

128 

1979 and held 52 hostages for 444 days 71. The Iranian mobs felt 

that American policy in the Persian Gulf was an impediment to 

their well-being and to redress the issue was to storm and violate 

the immunities of persons inside the Embassy. And since the Iran 

authority did not prevent them or even try to release the diplomats 

and hostages, it was assumed that the authority inspired the mobs‟ 

action and therefore an accomplice in the violation of diplomatic 

immunities, and so had violated an independent duty of 


Another clear example is that of 4 th May, 1970 when two 

Palestinian Arabs busted into the Israeli Embassy in Paraguay and 

shot and killed the wife of the First Secretary and seriously 

wounded an Embassy employee. The assailants were reported to 

be members of AL Fatah group, a faction of the PLO, and their 

action was based on Israel‟s national policy on the occupied 

territories. 72 

Another factor that causes the violation of diplomatic 

immunity is nationalism. In 1973 when the Federal Government of 

Nigeria felt the need to effect a change in her currency from Pound 

Sterling to Naira, it instructed the opening, and inspection of 

71 New York Time Magazine, No. 50, 10 th Dec. 1991. 

72 David Cariton and Carlo Schaerf, eds. International Terrorism and World Security

129 

official correspondence, and both diplomatic and consular pouches, 

measures taken to check the trafficking of Nigerian currency. This 

generated much protests and condemnations among foreign 

missions accredited to Lagos 73. Nevertheless, the government went 

ahead with her policy, which was a clear violation of the 1961 and 

1963 conventions. The opening and inspection of official 

correspondence and diplomatic or consular pouches conflict with 

customary international Law and international agreement to which 

Nigeria is a party. Besides this, Palestinian Resistance 

Organizations such as the Black September, a Splinter group of Al 

Fatah, faced a situation in which Israel occupied parts of the 

territories of three Arab states of Egypt, Jordan and Syria. The 

failure of Arab government armies in 1967 coupled with effective 

resistance of Palestinian Arab forces at the battle of Karameh in 

1968 sparked the growth of the Palestinian Arabs Resistance 

Movements, as well as the proliferation of groups. 74 And to assuage 

the feeling of Arab nationalism, this group has always hunted for 

persons with Israel‟s connection particularly diplomats. For 

instance, on 1 st March, 1973, eight members of Black September 

took over the Saudi Arabian Embassy in Khartoum, and seized 

(London: Croom Helm; 1975) p. 36. 

73 Chris N. Okeke, The Theory and Practice of International Law in Nigeria,(Enugu: Fourth Dimension Publishers;1986) p5.

130 

several hostages including the U.S. Ambassador, the Deputy Chief 

of Mission, the Belgian Charge d‟ Affaires, the Jordanian Charge d‟ 

Affaires and the Saudi Arabian Ambassador. Many other diplomats 

escaped. The terrorists demanded the release of sixty Palestinian 

guerrillas held in Jordan, all Arab women detained in Israel, Sirhan 

Sirhan (the killer of Senator Robert Kennedy) and imprisoned 

members of the Baader Meinhof gang in Federal Germany. But 

when negotiations failed, the terrorists executed the two U. S. 

diplomats and the Belgian Charge d‟ Affaires, on the night of 2 nd 

March 75 . 

Prior to this time, on 9 th October, 1934, King Alexander of 

Yugoslavia arrived in Marseille and was met upon arrival by French 

Foreign Minister, Louis Barthou and General Georges who had 

been assigned to the King as adjutant during his stay. Then the 

three personalities entered a motorcar and accompanied by a 

contingent of grade mobiles proceeded down Cannabiere to the War 

Memorial where the King intended to honour the French troupe 

who fought and died beside the Serbs in Macedonia. But in spite of 

the fact that the street was lined with Policemen facing the crowds, 

a tall, heavily built man named Petrus Kaleman, who together with 

74 Judy S.Vertelsen,Non-State Nations in International Politics–Comparative System Analyses(NewYork:Praeger Publisher,1977)p19. 

75 David Cartiton and Carlos Schaerf, eds. Op. Cit. p. 42.

131 

eight other members of the outlawed Oustashi organization, headed 

by Anta Pavelich who hoped to save Croatia from Yugoslavia and 

unite it in a new Austro-Hungary Croatian state, succeeded in 

breaking his way through the line, jumped on the running board of 

the king‟s car and fired 10 shots with an automatic rifle into the car 

before the was subdued. The king and the French Foreign Minister 

died in the attack while the struggle continued. The assassination 

was to have far-reaching consequences. 76 Of course, Croatia today 

has become an independent state recognized by many countries 

including the U. S. 

Further violation of diplomatic immunity could be caused by 

personal reasons. On 29 th February, 1972 two armed Cubans 

invaded the Canadian embassy in Havana and demanded political 

asylum. 77 Similarly, on 27 th January, 1992, aggrieved students of 

Niger Republic invaded their embassy in Lagos and held 

Ambassador Bourein Kossomi hostage. The students were 

infuriated by the repeated non-remittance of their scholarship fees. 

They only left the embassy following assurances from their home 

76 Lois M. Bloomfield and Gerald F. Fitegerald, Crimes Against International Protected 

Person : Prevention and Punishment – An Analysis of the UN Convention, (London : 

Praeger Publishers, 1975), p.2 

77 Ibid, p.17

132 

government that a settlement might be arranged, and an immediate 

payment of an undisclosed sum of money. 78 

War also could cause the violation of diplomatic immunity 

despite the Vienna convention (1961) provision that the receiving 

state must even in the case of armed conflict protect the premises 

of the mission, together with its property and archives. 79 During 

the height of the Liberia civil war and in August, 1990 particularly, 

the rebel forces of the National Patriotic Front of Liberia headed by 

Mr. Charles Taylor stormed the Nigerian embassy in Monrovia. 

They took away the Nigerians who sought refuge there, and looting 

cars, electronic gadgets and everything of value found in the 

premises. 80 Though it could be conveniently argued that Taylor‟s 

action was as a result of Nigeria‟s national policy towards Liberia, 

which favoured the despotic regime of Samuel Doe, the fact 

remains that the state was at war, and the immunity the legation 

enjoyed was violated because of the instability caused by the war. 

Terrorism is also a factor that causes the violating of 

diplomatic immunity. Of course, it could be perpetrated by 

individuals who are not state actors as was the case with Nigeria in 

78 Concord Newspapers, Vol. 12, No. 2572, 4th Feb. 1972 p. 1 - 2 

79 United Nations, Loc. cit, Article 45. 

80 Anger, B.A. Op.Cit. P.19.

133 

1994 when an unsuccessful abduction attempt was made on 

Umaru Dikko in his hideout in London. According to reports, the 

British Intelligence officers drugged and crated in a box found him. 

The box was brought to the British Standstead Airport where it was 

to be loaded into a Nigeria-bound Airways plane. Two Israelis were 

reported to be found in another crate. There was however a further 

report that an official of Nigerian embassy in London was found at 

the airport at the time of loading, working in conjunction with the 

Israelis in the kidnap attempt. The British authorities infuriated by 

the attack, arrested and detained seventeen people, among whom 

were some Nigerian diplomats, who according to the British officials 

were seen at the scene of the airport incident. 81 Though the 

Nigerian government strongly denied any involvement in the kidnap 

bid, the fact remains that her diplomats were strongly suspected 

and the immunities they enjoyed were violated. This led to a strain 

in relations and the recall of heads of missions by both countries. 

Oppressed and deprived people of the world tend to vent their 

anger and assuage their feeling on diplomats, other internationally 

protected persons and legations, at home or abroad. For instance, 

on 20 th September, 1972, 17 letter-bombs, postmarked Amsterdam 

81 Chris N. Okeke, Loc. Cit.

134 

and addressed to Israeli diplomats in many parts of the world, were 

discovered and rendered harmless in Brussels, Geneva, Jerusalem, 

Montreal, New York, and Vienna while on 25 th September, it was 

announced that five more had turned up in Canberra and Sydney 

and had also been made harmless. In one of the unexploded letter 

bombs in London, the Black September organization was 

implicated as being responsible for this dastardly plan of murder by 

mail. Again, the Swiss authorities intercepted five letter bombs at 

the airport postal center in Geneva on 10 th November, 1972. All 

had New Delhi postmarks and were addressed either to the Israeli 

mission, to the UN Agencies in Geneva or to Jews and Jewish 

organizations, all which were as a result of Israeli oppressive policy 

in the occupied territories. 82 

One could go further and further to cite instances of acts that 

engender the violation of diplomatic immunities, but in most cases 

those causes are as trivial as the acts are as brutal. Imperialism, 

colonialism, neo-colonialism, racism, apartheid and regimes of 

terror could cause the violation of immunity. Mere disapproval 

with a collective decision could trigger the violation of immunity as 

was the case on 2 nd April, 1992, after the UN secretary council 

82 Louis M. Bloomfield and Gerald F. Fitzgerald, Loc. Cit.

135 

passed a resolution to impose sanctions on Libya if she did not 

hand over two of her nationals accused of terrorism to the west and 

with regard to this resolution, the Venezuelan, Russian and 

Austrian embassies were attacked by demonstrations in Tripoli 

because these countries supported the UN Security Council vote for 

sanctions. Sequentially, on 7 th April, again the Libyan people 

demonstrated against the visit of a UN Peace envoy, and also 

around the Italian embassy, which represents both the British and 

American interest in Libya. Besides even vengeance could lead to 

violation of immunity as it happened on 5 th April, 1992. The 

Iranian opposition movement carried out series of attacks on a 

number of Iranian embassies around the World – Bonn, Britain, 

Bern, Canada and Iran‟s UN mission in the U.S., which were in 

retaliation of alleged Iran‟s attack on the movement‟s 

establishments and offices, in an Iranian air raid in Iraq. One thing 

common with the latter factor just as others is that they re used to 

redress issues justly or unjustly. 

State actors could be instruments in the violation of 

diplomatic immunity, either by omission or commission, by acts 

carried out in their home states or abroad. Once in the past, the 

Iraqi mission in Pakistan concealed arms in the embassy. The

136 

Pakistani government was refused permission to search the 

mission premises of the Iraqi embassy. The Iraqi diplomats by 

nature of their work as representatives of their state, even if their 

government was not in the know of their action or even if their 

government did not sanction, their action, are state actors and had 

caused the violation of the immunity of their premises enjoyed 83. 

Another set of actors that usually cause the violation of 

diplomatic immunity are such non-state actors like the Palestinian 

Arabs in the Middle East, Basques in Spain, Kurds in Turkey and 

Iraq, Welsh in Britain, and Navajo in the U.S 84. By the nature of the 

agitation for recognition, they are likely to engage in bastardly acts 

against diplomats and their legations like the PLO have often done 

against USA and Israeli diplomats and legations. Recently, the 

Indian nation (Navajo) or tribe in the US has asked for a separate 

contingent to the summer Olympic in Barcelona. It is not unlikely 

that on a repeated requests and refusal, they would engage in 

terrorist attack on US diplomats and diplomatic premises. 

Further, groups denied legitimate political status usually 

causes the violation of diplomatic immunity. Such groups include 

83 Article 41(3)of the Vienna Convention on Diplomatic Relations, 1961. 

84 Bertelsen, Op. Cit. p.223.

137 

the Irish Republican Army in Northern Ireland, the Red Brigades in 

Italy, Black September in the Middle East or such other groups as 

the two leftist urban guerrilla organization that kidnapped the 

Federal German ambassador to Brazil in Rio de Janeiro on 11 th 

June, 1970. 85 

The other set of actors include mobs or groups of persons, 

who for one reason or the other decide to vent their anger on 

persons that enjoy diplomatic immunity. This was the case with the 

mobs invasion of US embassy in Tehran in 1979, or recent Libyans 

attack on some embassies in Tripoli. 

3.7.1 State Responsibilities 

The main aim of law in society is to ensure orderly conduct. 

In so doing, law confers rights to and imposes obligations on its 

subjects. This general principle of law equally applies to 

international law. Responsibility is therefore central to 

international law. In the consideration of state responsibility, states 

are taken as normal subjects of international law. When the law 

has bestowed rights and duties on states, failure to discharge those 

duties may amount to acts of omission, which are wrongful. On the 

other hand some of the acts may be wrongful by acts of 

85 David Cariton and Carlo Ichaerf, eds. Loc. Cit.

138 

commission. Responsibility therefore comes in as an incident of or 

consequence of acts commission or omissions that are wrongful. 

Wrongful acts or omission in law are followed by redress. The 

redress may be payment of compensation or reparations. In certain 

situations a mere apology and promise not to indulge in the act or 

omission complained of might suffice. 

In ancient times, it was fashionable for treaties to lay down 

duties and to specify liabilities and the procedure to be followed in 

cases of breach. In modern law, legal institutions like the 

International Court of Justice and other tribunals have developed 

rules of responsibility. In discussing international responsibility 

there is always a strong tendency on the part of some lawyers to 

reduce it to the normal rules of human responsibility in terms of 

either contractual or delectable. This comparison in true sense is 

too literal therefore not apt. International responsibility is based on 

breaches of treaties and other responsibilities imposed by 


Responsibility has been described as: 

86 Spanish Zone of Morroco Claims 

A necessary collorary of a right. All rights of 

an international character involve 

responsibility. 86

139 

It is therefore a principle of international law that, a breach of 

an engagement involves an obligation to make reparation in an 

adequate form. Reparation is therefore an indispensable 

complement of a failure to apply a convention and there is no 

necessity for this to be stated in the convention itself. 87 It then 

means that the principle of international responsibility is not 

dependent solely on contractual relationship. 

In international law, any breach of a legal obligation gives rise 

to international responsibility. Objective test is applied to determine 

responsibility. Less emphasis is placed on the elements of dolus 

and culpa (those are the elements of intention and the neglect). A 

convention or a rule of customary intentional law may create the 

obligations breached. Where the acts of one state cause injury to 

another state; the injured state is entitled to redress. State 

responsibility is therefore concerned with circumstances and 

principles, which will ensure redress to the injured state. The 

nature of the redress will depend on the nature of the wrong. 

Sometimes the redress is sought through diplomatic channels. 

Instances where the integrity of the state is at stake, a mere 

apology and an undertaking not to repeat the act being complained 

87 Chorzow Factory (Jurisdiction) case PCIJ (1927) p21

140 

of may suffice. Where the act has led to a material loss or damage, 

the question of reparation may arise, in this kind of situation, 

recourse may therefore be had to international arbitral tribunals. 

The wrong that has brought about the loss may be of various types. 

It may have arisen from a treaty obligation or injuries to the citizen 

of another state. Where there is a breach or omission of a rule of 

international law; the claim of right under municipal law is not 

available to the state that is alleged to be in breach. Therefore, 

where an act has been characterized as an international wrong it 

can not be affected by the characterization of the same act as 

lawful under municipal law 88. It appears that the doctrine of ultra 

vires is not available to states under international law when dealing 

with state responsibility. Therefore once it is ascertained that the 

organ or agency of the government concerned with the breach of 

the international obligation has the authority to perform that duty 

it was carrying out, it would not matter if the authority has been 

exceeded. It is however imperative that it must be initially 

ascertained that the organ of the state concerned has the right to 

perform the duty it was carrying out. 

88 Artcle 4 of the Work of the International Law Commission on State Responsbility

141 

The responsibility arising from breach of treaty depends on 

the provisions of the treaty. In most cases, the question of 

responsibility is centred on the interpretation of the provisions of 

the treaty. Where a treaty provision is breached, responsibility 

follows. 89 

Responsibility of a state for a breach of contract entered into 

by the state and aliens or foreign corporations may not necessarily 

be international in character. An international responsibility may 

arise if apart from the breach of the contract, the state concerned 

did some other acts, which amount to a denial of justice against 

the alien. However, if under the contract, either expressly or 

impliedly, the state concerned and contracted with the state of the 

alien that it would observe certain of arrangements with its 

citizens, the breach of such terms will amount to state 

responsibility. 

Responsibility imposed on states for expropriation of property 

of a foreigner on its territory is complex. It has gone through 

several changes. Economic independence ensured by the United 

Nations declarations in 1966 and 1973 appears to have legalized 

expropriation under certain conditions. If the expropriation is for 

89 Chorzow Factory (Indemnitycase) PCIJ Reports (1928) p29

142 

public purpose, and is carried out in accordance with the declared 

domestic policy, and it does not involve the commission of any 

unjustified irregularity, no state responsibility will be incurred. 

States have the right to determine the extent to which non- 

nationals will have rights over the natural resources on their 

territory 90. However, every expropriation must be followed by 

prompt and adequate compensation determined in accordance with 

domestic legislation. 

The Calvo Clause derived its name from an Argentine jurist, 

called Calvo. The clause was popularly used in Central and 

Southern America. 

It was normally used in contracts in these regions between 

the countries and foreign companies or persons. The aim of the 

clause was to forestall such companies or persons who were 

normally granted concessions under the contracts from seeking the 

assistance of their home government in matters arising out of the 

contracts. 

The aim was to ensure that the dispute arising under 

contracts in which concessions were given were settled in 

municipal courts of the countries granting the concessions. The 

90 Art 2 para 2 of Covenant on Economic, Social, and Cultural rights 1966

143 

legal effect of such clauses has however been a subject of 

conflicting decisions by tribunals. In some cases, these clauses 

were declared void on the ground that an individual cannot 

contract out his right to protection by his home government. 

Generally however, it was the view that since there is no rule 

against inclusion of stipulations in contracts that all matters 

pertaining to a contract, the jurisdiction of the local tribunal should 

be complete and exclusive. The Calvo Clause can only be void if it 

attempts to wave in general terms the sovereign right of a state to 

protect its citizens. Also, where such a stipulation purports to bind 

the claimant‟s government not to intervene in respect of a clear 

violation of international law. 

Certain duties and obligations are those arising other than by 

contractual means. A breach of any of these duties leads to 

commission of a wrong on the part of the state causing the breach. 

This type of wrong is known as an international delinquency 91. 

International delinquencies are of several types and include injuries 

to aliens. These injuries include damage to property, personal 

injuries, improper arrest by local authorities, failure to accord 

justice to aliens. In as much as an alien entering another state is 

91 Starke, J. G. Introduction to International Law (London: Butterworths; 1977) p331.

144 

deemed to have surrendered himself to the local jurisdiction of that 

state, an alien is entitled to some form of basic treatment from 

which derogation is not permitted by international law. Failure to 

accord this can warrant his home government to take up the 

matter against the state causing the breach. 

Responsibility in this area of the law arises from the doctrine 

of immutability or attribution. 

This is a situation where a wrong occasioned by an agency or 

organ of a state is attributed or extended to the state itself. 

The doctrine is based on two basic considerations: 

(i) Whether the organ or agency concerned has the authority to 

act on behalf of the state, and 

(ii) Whether its conduct is attributable to the state under 


Where the wrong is attributable, the state becomes liable. In 

other words the principle of attribution makes a state which is an 

international person responsible for the acts of her organs and 

agencies. 

The operation of the doctrine of attribution is not analogous 

with municipal law system. This has been pointed out by the 

International Law Commission that:

145 

The attribution of an act or omission to state 

as an international legal person is an 

operation, which of necessity falls within the 

scope of international law. As a result it is 

distinct from the parallel operation which 

may, but need not necessarily take place 

under internal law. 

It is for this reason that the ultra vires rule does not apply to 

the doctrine of attribution. Once it is established that a state organ 

or official concerned had authority under the municipal law to 

carry out the duty, it can not be argued that the duty has been 

exceeded. Thus in the Youman‟s case, 92 a Mayor of a town in 

Mexico ordered a lieutenant of state forces to lead forces for the 

purpose of quelling a riot and attacks on some American citizens. 

The troops on arrival opened fire on a house in which the American 

citizens were living leading to the death of one of the Americans. 

The Mexican Government was held responsible for their action 

despite the fact that they acted contrary to instructions. 

A state has the responsibility to protect the interest of her 

nationals. This responsibility extends to those nationals who are 

even abroad. However this responsibility is exercised subject to the 

fundamental rule that every state has a right to exercise 

jurisdiction within its area free from control by other states. There 

92 Annual Diggest of International Law cases (1925-1926) p223

146 

is the need therefore to maintain a balance between these two 

responsibilities. 

The responsibility to protect citizens is exercised on the basis 

that citizens who are abroad should not be denied justice. Denial of 

Justice can arise in several ways. It may arise when the citizen of a 

state is subjected to inhuman treatment even if he has been 

imprisoned through the due process of law. It will also amount to 

denial of justice if the citizen‟s property is confiscated illegally 

where the judicial agencies of the respondent state deny the 

citizens of the claimant state access to courts for the purpose of 

seeking redress. Denial of justice can also occur where the citizen 

is subjected to an unfair trial, unwarranted delay in the procedure 

and manifestly unjust judgement 93. Thus in the Chatting Claim, 

the general claims commission held that, 

93 Starke Op Cit p337 

Irregularity of court proceedings is proven 

with reference to the absence of proper 

investigations, the insufficiency of 

confrontations withholding from the accused 

the opportunity to know all the charges 

brought against him, undue delay in the 

proceedings making the hearing in the court 

a mere formality and continued absence of 

seriousness on the part of the part of the 

court.

147 

It has been held that the intervention of home government on 

account of failure of justice is justifiable only if the foreigner 

concerned must have exhausted all the available local remedies 

without result. 94 But it is manifestly clear that the local judicial 

authority is not free from control in order to enable it exercise 

independent dispensation of justice of justice, the local remedy rule 

need not apply. 

Responsibility under international law is not strictly based on 

the principle of culpa (fault). Therefore in the Corfu Channel case, 95 

while finding Albania culpable of breach of International obligation 

the court observed that: 

The court must examine whether it had been 

established by means of indirect evidence 

that Albania had knowledge of mine lying in 

her territorial waters independently of any 

connivance on her part in this operation. 

The proof may be drawn from inferences of 

fact, provided they have not room for any 

reasonable doubt. 

In the said case, some mines were laid in the territorial 

waters of Albania, which the court found was with its knowledge, 

though not necessarily connivance. The Albanian government failed 

to notify some British warships that were exercising innocent way 

94 Ibid 

95 ICJ Report (1949) p4

148 

of passage of this fact. Two of the ships were heavily damaged as a 

result of mines explosion. The culpability of Albania was not based 

in any fault, but on her failure to discharge an international 

obligation. 

Since a state has the right to protect its citizens staying 

abroad, it can intervene diplomatically or through arbitral tribunals 

if her nationals are wronged. The basis of this intervention is that 

the state concerned has been wronged through her citizens. The 

matter becomes the matter between the two states. An injured 

national can only get redress through his state. It is propositioned 

that since the matter has become that of the state whose national 

is injured, it can press on with the matter even if the injured citizen 

waives his right 96. The jurisprudence here is that only states are 

recognized claimants before international tribunals. Once a state 

has taken up a case on behalf of one of its subjects before an 

international tribunal, in the eye of the later the state is the sole 

claimant 97. 

A state can espouse claims for her nationals as well as people 

placed under her protection or aliens who have satisfied almost all 

conditions for naturalization. The rule therefore is that at the time 

96 Starke, J.G. Op Cit. P 342 

97 Mavrommatis Palestine Concession case ICJ Reports (1942) p12

149 

of the injury complained of, the injured person must be shown to 

be the national of the state complainant until the claim has been 

decided. This is because, 

A nation is injured through injury to its 

nationals and it alone may demand 

reparations as not other nation is injured. 

As between nationals, the inflicting the 

injury will necessarily listen to the complaint 

of only the nation injured. Any other rule 

will open wide the door for abuses and might 

result in converting a strong nation into a 

claim agency on behalf of those who after 

suffering injuries should assign their claims 

to its nationals or avail themselves of its 

naturalization laws for the purpose of 

procuring its espousal of their claims. 

Where the party injured is a company or a corporation, the 

nationality rule will apply. The nationality of a company is the 

country where it is incorporated but not the nationality of the 

shareholders. Thus in the Barcelona Traction case, 98 the 

International Court of Justice upheld the objection raised against 

Belgium by Spain that, Belgium could not espouse claim on behalf 

of Barcelona Traction company which was registered in Canada, 

despite the fact that most of the shareholder were of Belgian 

nationality. 

98 ICJ Rports (1970) p3

150 

In order to bring a claim in respect of a breach of an 

obligation, a state must first establish its right to do so. The rules 

on the subject rest on two suppositions: The first is that the 

Defendant State has broken an obligation towards the national of 

the Claimant State. Secondly, only the party to whom an 

international obligation is due can bring a claim in respect of its 

breach. It is the bond of nationality between a state and an 

individual alone that confers on the state the right of diplomatic 

protection. It is a part of the function of diplomatic protection that 

the right to take up claims and to ensure respect for the rules of 

international law is envisaged. In a claims case, international law 

insists on close ties and genuine connection between an individual 

and the Claimant State 99. Where a corporation or company is 

involved, the law will be very slow under international law to lift the 

corporate veil. Therefore, in I‟m Alone case, 100 the fact that the real 

owners of the vessel were Americans, and any compensation 

awarded for the sinking of the vessel would end in the pockets of 

Americans was treated as irrelevant. In this case, a British 

schooner registered in Canada was ordered to heave to by a United 

99 Notteobohm case, ICJ Reports (1955) p15 

100 1935 3RIAA 1609

151 

States coastguard vessel on suspicion of smuggling liquor, at the 

time of prohibition in the United States. She fled but was fired at 

and sunk. The argument that the real owners were American 

citizens was discountenanced. 

In cases of state responsibility, once a claim has been 

sustained, the claimant state is entitled to some damages. This is 

whether the injury has caused some material damage, injury, 

pecuniary loss or not 101. Also, the fact that the state responsibility 

is as a result of an injury caused to its own national does not mean 

that the damage suffered by the state is identical to the injury 

suffered by that national. They are not the same. 

According to the PCIJ: 

The damage suffered by an individual is 

never… identical in kind with that which will 

be suffered by the state; it can only afford a 

convenient scale for the calculation of the 

reparation due to the state 102. 

For this reason, in some instances two separate heads of 

damage may lie from one wrong. One is in respect of the damage 

suffered by the individual and the other in respect of the injury 

suffered by the Claimant State. In I‟m Alone case, the 

commissioners recommended that the United States should pay 

101 Starke, J.G. Op Cit p347. 

102 Chorzow Factory (Indemnity) case (supra).

152 

some money to the Canadian government as well as to the family of 

the captain and members of the crew who suffered from the illegal 

act. Similarly, the International Court of Justice in its advisory 

opinion held that the United Nations could claim compensation 

both in respect of itself and of the damage to individuals arising out 

of injuries suffered by its officials in the course of their duties. 

When diplomatic immunities are violated either by state 

actors, non-state actors, groups or persons, there are options 

opened to states involved to redress the issue and make amend. As 

stated in the Vienna convention on Diplomatic Relations 1961, it is 

the duty of all persons enjoying privileges and immunities to 

respect the laws and regulations of the receiving state, but 

wherever such person does not observe the clause, the receiving 

state has a duty to declare the diplomatic staff persona non grata 

and without having to explain its decision. When this happens the 

sending state either recalls the person concerned “for 

consolation” 103or terminates his functions with the mission. 

Worthy of note is that a person ma be declared non grata before 

arriving in the territory of the receiving state. 104 

103 Norman D. Palmer and Howard C. Perkins, Interntional Relations 3rd ed, India ed. (New Delhi : CBS 

Publishers and Distributors ; 1985), p.89 

104 Article 9 of the UN charter

153 

If the offence was one which should be heard in the courts of 

the receiving state, the foreign ministry of the receiving state would 

ask the diplomatic mission or its superior to waive the immunity 

enjoyed by such a diplomat. And should the immunity be waived, 

the foreign office would inform the mission or superior concerned 

that the diplomat was no longer persona grata, 105 in which case, 

after the expiration of a reasonable period, the receiving state may 

refuse to recognize the person concerned as a member of the 

mission 106. When the waiver is granted, the diplomat is subject to 

prosecution in the local court, however, if judgment is passed a 

separate waiver is necessary for its execution. 107 Nevertheless, 

waiver can be withdrawn. Depending on the degree of stain on 

diplomatic relations, states can render apologies. 

According to J. G. Starke: 

If only its dignity has been affected, a formal 

apology from the responsible state or an 

assurance against the repetition of the 

matters complained of will generally be 

regarded as sufficient. 108 

But when an injury is not as an act of a state official, but by 

non-state nation actors or group or persons, the perpetrator must 

105 Norman D. Palmer and Howard C. Perkins, Op. cit p. 908 

106 Article 9 (2) of the 1961 Convention on Diplomatic Relations 

107 Article 32. paragraph 4 of the 1961 convention 

108 J. G. Starke, Introduction to Interntional Law, 9th ed. (London : Butterworth, 1984) p.283.

154 

be punished and with apology rendered to the sending state by the 

receiving state. And should the receiving state fail to punish the 

offender it would imply that it has facilitated the commission of an 

ultra vires act and thus has broken an independent duty of 


But then, if a diplomat commits a grave offence, it may call 

for his outright expulsion after the expiration of a reasonable period 

perhaps twenty four or fort-eight hours as the case may be; or even 

deportation. And very often, this kind of measure had led to a 

break of diplomatic relations. Meanwhile, relations may be either 

broken or suspended unilaterally. 

Besides the above mentioned measures which could be taken 

by states as their responsibilities, the United Nations has gone a 

step forward in her Resolution 3166 (XXVIII) in what the receiving 

states can do when the offenders are particularly non-state actors. 

In the resolution, the UN has defined in Article 2 the crimes 

committed and likely to be committed against internationally 

protected persons including diplomatic agents. Article 3 of the 

same resolution enjoined each state to take such measures as may

155 

be necessary to establish its jurisdiction over the crimes set forth in 

the Article. 109 While Article 7 of the said resolution states: 

The states party in whose territory the 

alleged offender is present shall, if it does 

not extradite him, submit without exception 

whatsoever and without undue delay, the 

case to its competent authorities for the 

purpose of prosecution, through proceedings 

in accordance with the laws of that state 110 . 

Short of the UN concern is: what happens if the state party, 

in which the offender commits the crime or finds himself, refuses to 

prosecute the offender or extradite him, or if the state is an 

accomplice in the offence? Since the resolution contains only moral 

appeal and injunctions without any credible coercive threat, 

nations can afford to aid the violation of diplomatic immunity with 

impunity. 

3.8 STATUS OF DIPLOMATS IN NIGERIA 

This section is important owing to the fact that international 

law is the expression of the collective will of states. Accordingly, it 

cannot exist in a vacuum. For international law to find expression 

in Nigeria, it must be internalised in Nigeria‟s domestic law. 

According to the 1999 constitution: 

109 United Nation, Resolution 3166 (XXVIII) and Annex 1973 Article 2 and 3. 

110 Article 7.

156 

No treaty between the federation and any 

other country shall have force of law except 

to the extent to which any such treaty has 

been enacted into law by the National 

Assembly’ 111. 

Based on the above, the Diplomatic Immunities and Privileges 

Act, Cap. 99, Laws of the Federation of Nigeria 1990, is a Nigerian 

Legislation. Its provision in respect of diplomats in Nigeria is 

basically the crux of this section. 

The general rule with regard to the position of municipal law 

within the international sphere is that a state, which has broken a 

stipulation of international law, cannot justify itself by referring to 

its domestic legal situation. It is no defence to a breach of an 

international obligation to argue that the state acted in such a 

manner because it was following the dictates of its own municipal 

laws. Any other situation would permit international law to be 

evaded by the simple method of domestic legislation 112. 

The Nigerian Act, Cap 99, 1990 defines a diplomat as: 

An envoy of a foreign sovereign power who is 

accredited to the Government of Nigeria 113. 

111 Section 12 (1) of the 1999 Constitution of the Federal Republic of Nigeria. 

112 Shaw, M. N. International Law (3 rd .ed) Cambridge : Cambridge University Press; 1991 pp. 104 – 5. 

113 Section 22 (1)

157 

The Diplomatic Immunities and Privileges Act Cap. 99, 1990 

also stipulates certain privileges and immunities for all diplomats 

in Nigeria. The 1990 Act further states that such diplomats and 

their official or domestic staff as well as members of their families 

will be accorded immunity from any civil or legal process as well as 

the inviolability of their residence and official archives 114. This 

article of the Nigerian Act correlates with the provisions of the 

privileges and immunities accorded diplomats in international law, 

such that for instance when an Egyptian diplomat is sent to Nigeria 

on behalf of his home government, he is automatically accorded 

immunities as provided in the Nigerian act, his family, domestic 

and official staff and their families along with him. However, a 

Nigerian citizen who is a member of staff of the diplomat shall not 

enjoy such personal immunities. 

114 Article 1 (1). 

The Article 10 of the Act clearly states that: 

When a person who is a member of the 

official or domestic staff of …is a citizen of 

Nigeria and not a citizen of the country 

concerned… he shall not by reason only of 

his being a member of that family, be 

entitled to personal immunities (if any which 

would otherwise be conferred on him by law, 

or to any exemption…

158 

To stress further the concept of immunity, the Nigerian law 

provides for individuals or persons who belong to a Commonwealth 

country to be protected and they also enjoy same immunities as the 

Chief Representative of a Commonwealth nation. 

Since Nigerian law recognizes and regards members of 

Commonwealth nations as foreign envoys, they are therefore 

treated and accorded the same immunities and privileges as the 

other diplomatic agents. Art. 3 of the Nigerian Act states this and 

as such all immunities accorded also to diplomat‟s official and 

domestic staff is also accorded those of a Chief representative of a 

Commonwealth Nation (Art. 4 (a – c) ). Immunities are also 

accorded Commonwealth representatives attending a conference in 

Nigeria. This is stated clearly in Art. 6 (1) of the Act. What this 

goes on to imply is that whether the individual is a diplomat or is 

representing his government at the conference he is treated as a 

diplomat. However it must be noted that a Nigerian Citizen who is 

either a diplomat or is representing the country at the conference 

will not be accorded any immunity since he is a citizen of Nigeria. 

This is expressly stated in Art 6 (4). Consular immunity may also 

be conferred on persons regarded as foreign consular officers to

159 

enable them perform their consular functions effectively. They are 

also immune from any suit or legal process. 

Waiver of immunity is permitted under the Nigerian act. A 

diplomat is allowed to waive his immunity with the consent of his 

government and waive that of any member of his staff (Art. 7 (1)). 

The question here is how possible is this? In some cases waiver of 

immunity is done usually to bring suit against a diplomat who has 

in one way or the other committed a crime and since he has 

personal immunity, no suit or legal process can be brought against 

him except if his immunity is waived. How then is it possible for a 

diplomat to waive his own immunity in such an instance? 

Granted, a diplomat can waive his immunity but when this 

happens, it means the diplomat is the plaintiff in the case. And 

when this is done, there is not much that can be done by the 

diplomat‟s sending government to extradite him since he has 

already placed himself under the laws of the government of the host 

country. If the crime committed is murder for instance, it is almost 

unlikely if not entirely impossible for a diplomat to waive his own 

immunity and subject himself to the laws of the land. 

The Minister also has the power to either confer immunities 

or withdraw such immunities on a diplomat within the territories of

160 

Nigeria. Article 8 of the 1990 Nigeria Act states that the Nigerian 

Minister has the power to reduce the personal immunities of a 

diplomat or any member of his staff or family where he (the 

Minister) feels that such personal immunities exceed those 

accorded in the territory of the foreign sovereign power and order 

the withdrawal of those immunities as it appear to him as proper in 

respect of certain classes of people. This article however fails to 

define the scope or what can be done proper by the Minister. 

The Minister by virtue of Part II of the 1990 Act can confer 

immunity on any person who is a representative of an international 

organization, members of which are sovereign powers. These are 

specified in the first schedule, Part II of the Act. 115 That 

representative of International organizations like the United 

Nations, African Union, European Economic Community and 

others will also enjoy immunities and privileges granted foreign 

diplomats in Nigeria. These representatives could also include 

counsels and agents of the International Court of Justice. 

Inviolability of the mission premises is also stated. What this 

goes to say is that the citizens or government of the receiving state 

has no right to enter the mission premises except with the 

115 1990 Nigerian Act on Diplomatic Immunities and privileges. Part II : Immuities and Privileges of 

International organisations and persons connected therewith Article 11 (1 – 4)

161 

permission of the diplomat. This also covers inviolability of the 

official archives of the diplomat. 116 

Fees, levies, rates, duties, taxes, whenever applicable may be 

exempted the diplomats by the Federal Minister of Finance who has 

the power to grant exemption from such taxations. And this 

applies to all categories of persons who are diplomats by Nigerian 

law and are accorded immunities and privileged as such. This also 

includes those representatives of International organizations 

present in Nigeria. And such charges or stamp duties in respect of 

goods belonging to representatives of such organizations will be 

exempted. 

3.7.1 Inherent Limitations 

Summarily, the Nigerian Act of 1990 protects clearly all 

categories of diplomats entering Nigeria, personal immunities are 

granted them and their staff as well as members of their respective 

families, there is also inviolability of the residence and official 

archives and exemption from taxes, duties charges and so on. Be 

these as it may be however; there are certain problems, which are 

inherent in the Act. The Act states that immunity is guaranteed all 

diplomats, their family and members of staff of such diplomats. 

116 Part I Diplomatic Immunities and privileges Act. Article 3

162 

This immunity from suit or legal process to an extent allows 

flagrant abuses of this immunity. This is such that some diplomats 

might decide to take the laws into their hands and disobey the laws 

of the receiving state and thereafter plead diplomatic immunity. 

The Act is too broad. For instance, if the Canadian diplomat to 

Nigeria is caught driving recklessly along a road in Nigeria, he can 

be stopped but if he refuses to stop and then due to his reckless 

driving knocks down a Nigeria citizen and kills such a person. The 

diplomat now pleads diplomatic immunity. In the real sense he is 

protected from any legal proceedings but the Nigerian citizen has 

already been killed and what the diplomat will do is probably to 

apologize or his sending government will, but the crime itself is 

against all principles of human rights. The Nigerian citizen who 

was killed has a right to use the road just as much as the 

Canadian but in a situation where the Canadian diplomat violated 

traffic rules and has gone ahead to commit another offence, it is an 

abuse of privilege. Using this example again, the problem of waiver 

of immunity and the possibility of the diplomat waiving his 

immunity can also be criticized to a certain extent. The Canadian 

diplomat in this case will definitely not want to waive his immunity

163 

and subject himself to the laws of Nigeria knowing fully well that 

such a crime carries a stiff penalty. He is the accused or defendant 

in this case and if so it is most unlikely, if not impossible, for him 

to waive his personal immunity. 

In the case of inviolability of the premises of a mission, the 

1961 convention specifies that the citizens or the government of the 

receiving state have no right to enter the premises except by 

permission from the head of the mission. The government of the 

receiving state has a right to protect such a premises from its own 

citizens but what stance is for example, the Nigerian government 

expected to take or what measure is it expected to take when the 

security of premises of a mission is being threatened or in danger 

at the hands of the diplomat himself. It has been argued that in 

case of fire, the government of the receiving state even without 

permission from the head of the mission, can enter the premises to 

save it but consider for instance that the diplomat in charge of the 

Ghanaian Embassy in Nigeria is drunk and running around lose 

with a gun in the Embassy and is threatening to shoot his 

colleagues and staff and the Nigerian Minister for Foreign Affairs, is 

told of such a situation, what is the Nigerian government supposed 

or expected to do in such a case?

164 

Another problem area is that of waiver of immunity or the 

ability for the Nigerian Minister to re-appraise personal immunity of 

a diplomat and where it appears to him to exceed certain limits, 

order the withdrawal of such immunities in respect of certain class 

of people as appear to him to be proper. The act however failed to 

define in concrete terms the word „proper‟ what criteria will be used 

by the Minister to determine what is proper. This could also give 

room for abuse of this privilege by our Ministers. The Minister 

could decide to issue an order for withdrawal of certain personal 

immunities based on personal grudge or misunderstanding. For 

instance, may be the Nigerian Minister for Foreign Affairs traveled 

to Sierra Leone and feels he was not given proper recognition or 

something he could come down to Nigeria and feel he should take it 

out on the Sierra Leonian diplomat in Nigeria by withdrawing 

certain immunities or so. Such Act could be said to give rise to 

questions of interpretation in that certain terms are not well or 

clearly defined.

165 

CHAPTER FOUR 

SOURCES OF DIPLOMATIC AND CONSULAR LAW 


International law does not operate in a vacuum. Its norms 

and Principles are actualized within specific territorial units. The 

relationships between states are carried out by representatives who 

must situate at any point in time within the territory of one state or 

the other. 

It has been generally accepted that international legal norms 

do not receive automatic force of law within municipal systems 

except to the extent that such municipal systems have incorporated 

or internalized such norms. Consequently when discussing the 

legal status of the subjects of diplomatic and consular law, 

reference must always be made to the municipal set up. It is in this 

vein that the Nigerian law is treated in this essay. 

The history of practice of granting diplomatic and consular 

Privileges and immunities in Nigeria is inextricably linked with 

United Kingdom, its colonizer. The Statute of St. Ann 1708 had 

remarkable influence and operation in Nigeria, so also was the 

Diplomatic Immunities and Privileges (Extension) Act. After 

independence in 1960, Nigeria tried to sanitize its statute law from

166 

the Vestiges of colonialism. Consequently, the Acts which were in 

operation in Nigeria were repealed and replaced by the Nigerian 

Diplomatic Immunities and Privileges ACT, 1962 presently cited as 

Cap 99 laws of the Federal Republic of Nigeria, 1990. 

4.2 SCOPE OF THE ACT 

4.2.1 Immunities of Foreign Envoys and Consular 

Agents 

Foreign envoy is said to mean an envoy of a foreign sovereign 

power who is accredited to the Government of Nigeria. While 

“Foreign Consular Officer means a consular officer of a foreign 

sovereign power who is recognized by the Government of Nigeria. 1 

Part 1 of the 1990 Act provides for immunity from suit and 

legal process and inviolability of residence and official archives of 

every foreign envoy and every foreign consular officer, members of 

the families of those persons, the members of their official or 

domestic staff, and the members of the families of their official 

staff. 2 This Act also renders void any writ or process sued forth or 

prosecuted before the coming into operation of this Act, where any 

foreign envoy or foreign consular officer or any member of his 

1 Section 22 (z) 

2 Section 1 (1)

167 

official or domestic staff is liable to arrest or imprisonment, or his 

or their goods or chattels are liable to distress, seizure or 

attachment. 3 The Act further provides that immunity from arrest 

does not extend to any member of the official or domestic staff of a 

foreign envoy or foreign consular officer, unless he records, before 

the arrest, the name of such persons with the minister. 4 The 

“Minister” as used here means the minister charged with 

responsibility for foreign affairs and commonwealth relations. 5 

In Alhaji A.G. Ishola Noah vs. His Excellency the British High 

Commissioner to Nigeria 6 where the Supreme Court was confronted 

with the issue of whether it has jurisdiction in an action brought 

against the British High Commissioner; and whether an action 

brought against a foreign envoy is valid. It was held inter alia that 

the Supreme Court of Nigeria has no original jurisdiction in an 

action brought against the British high Commissioner in Nigeria, 

and that the action in respect of the High commissioner and foreign 

envoy is incompetent, null and void. 

3 Section 1 (2) 

4 Section 1 (3) (a) 

5 Section 22 (1) 

6 (1980) N.S.C.C. Vol. 12 P. 265.

168 

In relation to taxation, the words “exemption” and “grant” 

have been used. The power of exemption from time to time, wholly 

or partly from any public tax, duty, rate, levy or fee, in relation to a 

foreign envoy and foreign consular officer has been given to the 

Federal minister of finance. Such discretional exemption by the 

official and domestic staff and their families is provided for in 

Article 9. 7 This suggests that how such exemption is to be effected 

falls within the prescription and dictation of the Minister. This is a 

departure from the 1961 and 1963 Vienna Conventions on 

diplomatic relations and consular relations respectively both of 

which have no mention of the said minister. 

In relation to waiver of immunity of foreign envoys and foreign 

consular officers, section 2 of the act provides that each of them 

could waive any immunity of inviolability with the consent of his 

Government. He however does not necessarily need consent from 

his Government to waive any immunity or inviolability conferred on 

his family or member of his domestic or official staff and their 

families. 

7 Section 9

169 

4.2.2 Immunities of Chief Representative of a 

Commonwealth Country 

Section 22 (2) provides that “References in this Act to 

“commonwealth country “ or to „commonwealth countries‟ shall be 

read as references to all or any of the following countries that is to 

say, the United Kingdom and colonies, Canada, Australia, New 

Zealand, India, Pakistan, the federation of Rhodesia and 

Nyasaland, Ceylon, Ghana, the Federation of Malaya, the State of 

Singapore, Cyprus, Sierra Leone, Tanganyika, Uganda, Jamaica 

and such other countries as the minister may by order in the 

Gazette declare for the purposes of this Act, and included the 

Republic of Ireland”. 

The Act provides for the immunity of a chief representative of 

a commonwealth country. He shall be entitled to immunity from 

suit and legal process and inviolability of residence and official 

archives as are accorded to a foreign envoy. 8 He is also entitled to 

such exemption from taxation from time to time, wholly or partly as 

accorded to foreign envoys and foreign consular officers, by the 

Minister of Finance. 

8 Section 3

170 

4.2.3 Immunities of Members of Staff and Families 

The members of the official and domestic staff of the chief 

representative of a commonwealth country also have immunity 

from suit and legal process. Members of the families of his official 

staff and members of the families of the chief Representative of a 

commonwealth country are also entitled to immunity, and are also 

entitled to such time to time exemption from taxation as the chief 

representative of a commonwealth country. These immunities do 

not extend to such official staffs who are citizens of Nigeria unless 

in respect of things done or omitted to be done in the course of 

performance of his duties. The Chief Representative of a 

commonwealth country can also waive these immunities without 

necessarily seeking consent from his Government except in relation 

to him. The minister can also withdraw immunities if by his 

assessment, any personal immunities conferred by this Act exceed 

those accorded any Nigerian representative by any foreign power. 9 

4.2.4 Consular Immunity 

Consular immunity can also be conferred on persons in the 

service of the Government of any other commonwealth country; 

persons in the service of the Government of any territory for whose 

9 Section (8) see also Section 16

171 

international relations the Government of any such country is 

responsible. Such immunity shall cover immunity from suit and 

legal process and inviolability of residence and official archives as 

accorded to foreign consular officers. Such power to confer 

consular immunity by regulation lies with the governor-general, 

which he does from time to time, as he deems necessary or 

expedient. 10 Exemption from taxation also extends to a person 

upon whom consular immunity is conferred, and a member of his 

official and domestic staff and their families, and members of his 

own family this exemption does not extend to a member of his 

official or domestic staff if such person is a Nigerian and if such a 

person is not resident in Nigeria for the sole purpose of performing 

his duties. 11 Personal immunities as used in section 10 of the Act 

means immunity from suit or legal process (except in respect of 

things done or omitted to be done in the course of the performance 

of official duties) and include inviolability of residence and 

appearance before any court or other tribunal as a witness. 12 

By this interpretation, no immunities are accorded any 

person except in the actual performance off his official duties if 

10 Section 20. 


12 Section 22 (1)

172 

such person is a member of the domestic or official staff of a foreign 

envoy; or a foreign consular officer; or a chief representative of a 

commonwealth country or a person upon whom consular immunity 

is conferred by regulation; or a person attending a commonwealth 

conference in Nigeria or a representative or of officer of the 

Government of any country other than Nigeria or of any provisional 

Government, national committee, or other authority recognized by 

the Government of Nigeria if he is temporarily resident in Nigeria in 

accordance with any arrangement made with the Government of 

Nigeria. 

Any person may waive any immunity or inviolability conferred 

on him under regulation. 

4.2.5 Immunities of Commonwealth Representatives 

Immunities are also extended to commonwealth 

representatives attending conferences in Nigeria. Such persons 

shall have immunity from suit and legal process and inviolability of 

residence and official archives, along with their families and official 

and domestic staff. These immunities will not commence until a list 

comprising of the representative is compiled and published in a 

Gazette by the minister. This immunity also extends to such

173 

exemption from taxation as will be granted by the minister of 

finance, from time to time, wholly or partly. 

Where a conference is held in Nigeria and is attended by 

representative of the Government or Governments of one or more 

foreign sovereign powers, the minister may by notice in Gazette 

direct that such representative be treated as if he were a foreign 

envoy and thereby enjoy privileges and immunities as such. 

Members of his official staff also enjoy privileges and immunities 

from time to time as directed by the minister, as those enjoyed by 

members of the official staff of a foreign envoy. The direction to 

enjoy such immunities and privileges arise only when it appears to 

the minister that doubts may arise as to the extent such 

representative and their official staff are entitled to privileges and 

Immunities. This does not however extend to the Federal or any 

regional Government of Nigeria. 13 Privileges, Immunities or 

inviolabilities conferred any person by this section can be waived by 

such person. 14 

4.2.6 Honorary consuls 

Privileges are also extended to honorary consuls or trade 

commissioners. These privileges and immunities which were 


14 Section 15.

174 

accorded honorary consuls and trade commissioners before the 

coming into operation of the Act are deemed not to be abrogated or 

restricted by the Act. These privileges after the commencement of 

the Act fall within the approval or not of the Minister. His approval 

which should be in writing is required for the continuation of such 

privileges after the commencement of the Act. 

4.2.7 Immunities of International Organizations 

From the provisions of section 1(1), an organization is that 

which the Minister by order declares to be an organization, the 

members of which are sovereign powers. An international 

organization shall have immunity from suit and legal process. And 

also inviolability of residence and official archives of a foreign 

envoy. It shall also be exempted from taxation as granted by the 

Minister from time to time wholly or partly, in relation to goods 

imported by the organization for its official use in Nigeria, and also 

on the importation of any publications of the organization directly 

imported by it. An organization will also be exempted from 

prohibitions and restrictions on importation in the case of any 

publications directly imported or exported by it. This is however 

subject to compliance with such conditions as are prescribed by 

the Federal Minister of Health in relation to public interest. The

175 

organization also has the right to avail itself, for telegraphic 

communications sent by it and containing any matter intended for 

publication by the press. 

4.2.8 Immunities And Privileges of Representatives, Members of 

Committee, Senior Officers, and persons on Missions 

The Second schedule to the Act outlines immunities available 

to representatives of any of the organization, senior officers and 

such persons employed on missions on behalf of the organization 

convened the organization or of any organ thereof. 15 These 

categories of persons are entitled to immunity from suit and legal 

process as is accorded to a foreign envoy. They are also entitled to 

inviolability of residence and official archives as is accorded to a 

foreign envoy. They are also entitled to such exemption in relation 

to taxation as granted by the Minister from time to time wholly or 

partly. 16 

4.2.9 Immunities and Privileges of Official Staff and 

of Senior Officer’s Families 

Section 22 (1) provides that “member of the family” in relation 

to any person to whom this Act applies, means the spouse or any 

child of that person. Immunity is extended to the official staff of 

15 Section 11 (2) (b)

176 

such Senior Officers, representatives and persons on mission on 

behalf of the organization as prescribed by the Second Schedule to 

this Act. And accordingly immunity also extends to the members of 

the family of an officer of the organization. This immunity is one 

from suit and legal process ad inviolability of residence and official 

archives as accorded a foreign envoy. And also such exemption 

from taxation as accorded a foreign envoy. 17 

4.2.10 Immunities and Privileges of Other Classes 

of Officers and Servants: 

The Third Schedule confers immunities on other classes of 

officers and Servants of the organization. They have immunity from 

suit and legal process in respect of things done or omitted to be 

done in the course of the official performance of official duties. They 

also enjoy exemption from taxation in respect of emoluments 

received as officers or servants of the organization. They also enjoy 

exemption from taxes on the importation of furniture and effects 

imported at the time of first taking up post in Nigeria, the 

exemption to be subject to compliance with such conditions as the 


17 See Fourth Schedule to the Act.

177 

Federal Minister of Finance may prescribe for the protection of the 

revenue. 18 

4.2.11 Immunities of Judges and Registrars of the ICJ: 

Section 12 provides “the Minister from time to time, by order 

in the Gazette confer on the judges and registrars of the 

International Court of Justice established by the charter of the 

United Nations, and on suitors to that Court and their agents, 

councils, and advocates, such immunities, privileges, and facilities 

as may be required to effect to any resolution of, or convention 

approved by, the General Assembly of the United nations”. 

These privileges include exemption from stamp duty under 

the stamp Duties Act and from fee or duty charged under any Act, 

and from any duty chargeable under the law relating to customs 

and exercise any good belonging to or acquired by any such 

organization or person. 

The Diplomatic Immunities and privilege Act, 1990, is 

constituted mainly by issues relating to or connected with 

inviolability, immunities and privileges of diplomatic missions, staff 

of mission, international organizations and persons connected 

therewith. 

18 Section 11

178 

A careful study of the Act reveals a reflection of the Vienna 

Convention on Diplomatic Relations of 1961 and to some extent, 

the Vienna Convention on Consular Relations of 1963 even though 

at the time of enacting the Act, the 1963 Convention had not yet 

been enacted. Terminologies differ to some extent however. 

For though the 1990 Act reflects reason ably the Vienna 

Convention both on diplomatic relations 1961 and consular 

relations 1963, there are certain areas the Act has not expressly 

made provision for. The Act has made no provision relating to 

question of official communication, official correspondence and 

diplomatic bag of the diplomatic mission. In contrast, the 1961 

Convention has made elaborate provisions thereon in Article 27. 

The Act also in relation to taxation has given power to the 

Minister of Finance to from time to time wholly or partly exempt 

from public tax, duty, rate, levy, a foreign envoy or foreign consular 

officer. This provision does not exactly reflect Article 49 of the 1963 

convention. But to some extent reflects Article 36 (1) (a) and (b) of 

the 1961 Convention which provides that: 

The receiving state shall, in accordance with such 

laws and regulations as it may adopt, permit entry 

of and grant exemption from all custom duties, 

taxes…

179 

There is no express provision for such power to be conferred 

on an individual as it is in the Nigerian Act, conferred on the 

Minister of Finance. But the provision in Article 36 of the 1961 

Convention that states may adopt laws and regulations relating to 

the granting of exemption from taxation, justifies the law adopted 

in the 1990 Act. 

Section 1 of the Act of 1990 has provisions relating to 

immunity from suit and legal process and inviolability of residence 

and officials achieves. These provisions reflect the inviolability of 

residence (Article 30) in the 1961 conventions, inviolability of 

archives (Art 24); privileges and immunities of private servants of 

members of the mission (Art, 37 (4); privileges and immunities of 

members of family of a diplomatic agent (Art, 37 (1)); immunity 

from criminal, Civil and administrative jurisdiction] (Art 31). There 

is also a reflection of the 1963 Convention on Consular Relations. 

These include inviolability of consular archives and documents (Art 

33); inviolability of consular officers (Art. 41). However Articles 41 

further provides that in cases of grave crime and in pursuant to a 

decision by a competent judicial authority, a consular officer shall 

be liable to arrest and detention. The Nigerian Act of 1990 does not 

draw this exception but instead accords unconditional immunity

180 

from legal process and suit and inviolability to consular officers 

(Section1). The Convention on Consular Relations of 1963 also 

provides that where criminal proceedings are instituted against a 

consular officer he must appear before the competent authority. 

This is also not reflected in the Act. 

There is also no provision in either the convention on 

diplomatic relations or consular relations in respect of 

Commonwealth countries and international organizations. In 

contrast, there are elaborate provisions relating to the chief 

representatives of a Commonwealth country and international 

organization. In fact, part 1 of the Act which is entitled “immunities 

of foreign envoys and consular officers”, is centered on immunities 

of chief representatives of a commonwealth country, members of 

staff and families, and immunities of commonwealth 

representatives. The whole of Part 11 of the Act is devoted to 

immunities and privileges of international organizations and 

persons connected therewith. The immunity, inviolability and 

privileges accorded chief representatives of Commonwealth 

countries by the Act, are exactly the same with those accorded 

foreign envoys and consular officers.

181 

A study of the diplomatic privileges and immunities Act of 

1990 also reveals that it has not been properly composed. The 

provision in relation to Honorary Consuls or Trade Commissioners 

(Section10 (2)) is vague. No stipulation has been made concerning 

the specific privileges of Honorary Consuls or Trade 

Commissioners, except that the Act does not abrogate such 

privileges as Section 10 (2) says. Sections that ought to have been 

placed one after another have been placed far apart and titles do 

not always make proper reference to the contents therein. An 

example here is the case concerning immunities and privileges of 

foreign envoys and consular officers, and chief representative of 

commonwealth countries discussed above. This provision seems to 

suggest that foreign envoys and consular officers are same with 

chiefs of, and Governments of commonwealth countries. 

Too much power has also been given “The Minister” and the 

Minister of Finance. The powers to charge, exempt, decline, direct, 

modify, declare confer, notify, revoke, amend, approve, etc. 

conferred on the two ministers in Sections 

6,8,9,10,11,12,13,14,15,16,17,18 and 19, seem to leave too much 

to the determination of the two Ministers. These powers may not 

only be abused but may eventually lead to corruption.

182 

Privileges, Immunities and inviolability has been more 

carefully and neatly grouped in the Vienna conventions. The 

Nigerian Act makes assimilation tedious and difficult by scattering 

immunities and privileges of members of families of diplomatic 

agents, members of technical and administrative staff, members of 

service staff, and private servants of members of mission and their 

families, in sections 1, 2 (1), 4, 6(1), 8, 9(1) (I) (j), 10 (1) (g), instead 

of emulating the 1961 Convention which was in force before its 

enactment. 

Also the Governor – General mentioned in Section 20 remains 

unidentified throughout the Act. the interpretation section – says 

nothing concerning him. And yet he plays the powerful role of 

making regulations from time to time as he thinks necessary or 

expedient. 

By way of recommendations, the Act has out lived its 

usefulness. It should be reenacted reflecting the Vienna convention 

on both Consular and Diplomatic Relations since it was enacted 

before the Convention on Consular Relations 1963 came into force 

and should not use such sweeping words as “foreign envoys” and 

“consular officers” to mean diplomatic agents or heads of mission, 

and consular officers or head of consular post. It should reflect in

183 

terms, forms and principles of the conventions, since Nigeria is a 

signatory to these conventions. 

It should also be a document that affords easy 

comprehension. Sections, parts, subsections should be used with 

precision and titles should reflect the sections thereunder. A study 

of the Act will reveal in greater detail the necessity of this 

recommendation. 

4.3 GENERAL SOURCES OF DIPLOMATIC AND CONSULAR 

LAW 

Diplomatic and consular law is a branch of public 

international law that governs diplomatic and consular relationship 

between states in the international system. A discussion of the 

sources of Diplomatic and consular law must start from sources of 

international law of which it is a vital part. 

The last and present centuries have witnessed a greater 

impetus to the development of international law than at any 

previous stage of its history. This is a natural result of the growing 

interdependence of states, and of the vastly increased intercourse 

between them due to all kinds of inventions that overcome the 

difficulties of time, space and intellectual communication. New

184 

rules had to be found or devised to meet innumerable new 

situations. 

International law, as we know it today, is that indispensable 

body of rules regulating for the most part of the relations between 

states, without which it would be virtually impossible for them to 

have steady and frequent intercourse. In the absence of some 

system of international law, the international society of states could 

not enjoy the benefits of trade and commerce, of exchange of ideas, 

and of normal routine communication. 

Whereas previously the international society could rely on the 

relatively slow process of custom for the formation of rules of 

international law, modern exigencies called for a speedier method 

of law making, all of which now exist. 

The essence of this chapter is therefore to enumerate, 

examine and discuss sources of international law and the relevance 

of these sources to diplomatic and consular law, with a view to 

exposing how they contribute to the development of international 

law. It is also intended to determine the relationship between this 

branch of international law and municipal law of states considering 

the fact that the contents of international agreements are

185 

actualized within the municipal system where the diplomatists 

reside. 

4.4 THE CONCEPT OF SOURCES OF DIPLOMATIC AND 

CONSULAR LAW 

According to Gasiokwu: 

Any general inquiry into the concept of sources ofi 

diplomatic and consular law must in principle be 

linked with the sources of public international 

law, the former being a branch of the later. 19 

The above is connotative of the fact that the concept of sources 

of diplomatic and consular law must incurably be linked with the 

sources of public international law. This is because diplomatic and 

consular law is a vital branch of public international law. 

says: 

According to J.G. Starke: 

The material „sources‟ of international law may be 

defined as the actual materials from which an 

international lawyer determines the rule 

applicable to a given situation. 20 

Commenting on the above quotation by Starke, D.W Greig 

From the above, it is clear that „sources‟ is 

understood to mean evidence of applicable rule, 

which the lawyer can lean on in a given situation, 

which is where the relevant rules can be found. 21 

19 Gasiokwu, M.U and Dakas, C.J., Contemporary Issues and Basic Documents on Diplomatic and 

Consular Law (Jos: Mono Exp. 1997) p. 36 

20 Starke, J. G., Introduction to International Law (9 th Ed.) (London: Butterworths; 1984) p.31 

21 Gaiokwu and Dakas, Loc. Lit.

186 

As follow-up to what has already been discussed, Salmond, 

attempts to explain the distinction between „formal‟ and material 

„sources‟ in the following terms: 

A formal source is that from which a rule of law 

derives its force and validity. The material sources, on 

the other hand, are those from which is derived the 

matter, not the validity of the law. The material source 

applies to the substance of the rule to which the 

formal source gives the force and the nature of law. 22 

Sequel to the above, for instance, a rule will be legally binding 

if it meets the requirements of a custom, which is a formal source 

of international law, and its substance will be indicated by state 

practice, which is the material source of the custom. 

G.I Tunkin expresses his views that: 

Sources …. are the final outcome of the normcreating 

process… it refers to the issue concerning 

where… legal norms should be sought. 23 

Gasiokwu sums it up in the following words: 

Consequently any inquiry into sources of 

international law in general, and diplomatic and 

consular law in particular should be construed to 

mean an inquiry concerning where international 

legal norms should be located and hence which 

international norms are legally binding and which 

are not. 24 

22 Maclean, R. Public International Law, (15 th ed.) (The Commonwealth Law Book Programme; 1994) P.9 

23 Tunkin, G. I. (ed.), International Law, (Moscow: progress Publishers; 1982) P. 268 

24 Gasiokwu and Dakas, Loc. Cit.

187 

4.5 SOURCES OF GENERAL INTERNATIONAL LAW 

The present century has witnessed a greater impetus to the 

development of international law than any previous stage of its 

history. This is a natural result of the growing interdependence of 

states and the vast increased intercourse between them. The 

increase in intercourse has become possible because of inventions 

that have overcome the difficulties of time, space and intellectual 

communication. New rules had to be found or devised to meet 

innumerable situations. 

International law as we know it today is that indispensable 

body of rules regulating for most part the relationship between 

states, without which it will be virtually impossible for them to have 

steady and frequent intercourse. In fact, it is an expression of the 

necessity of their natural relationship. In the absence of some 

system of international law, the international society of states could 

not enjoy the benefits of trade and commerce, exchange of ideas 

and of normal routine communication. 

Whereas previously, international society of states could rely 

on the relatively slow process of custom for the formation of rules of 

international law, modern exigencies call for a speedier method of 

law making all of which are now existing. This call for speedier

188 

method of law making finally led to establishment of the 

International Law Commission under the auspices of the United 

Nations, for the codification of international law. This chapter 

therefore enumerates and examines these sources of international 

law, and to show how they contribute to the development of 


When referring to sources of international law, international 

lawyers usually begin by reference to Article 38 of the Statute of the 

International Court of Justice. This provision, is adopted from the 

same Article in the Statute of the Permanent Court of International 

Justice which operated under the League of Nations system, is 

frequently regarded as enumerating all the sources of international 

law. While there is little doubt that Article 38(1) does embody the 

most important sources of law, it is increasingly becoming the case 

that international lawyers will have regard to instruments and 

principles that do not fit into this structure. General Assembly 

resolutions, international trade practice, treaties not yet in force 

and principles of equity widely drawn are becoming increasingly 

important additional sources of law. 25 It remains the case, however, 

that any examination of the sources of international law must 

25 Maclean, op. cit. P. 8 .

189 

begin with an assessment of the provisions of Article 38(1) of the 

statute of the International Court of Justice. 

The Court, whose function is to decide in accordance with 

international law such disputes as are submitted to it, shall apply: 

(a) International conventions, whether general or particular, 

establishing rules expressly recognized by the contesting 

states; 

(b) International custom, as evidence of a general practice 

accepted as law; 

(c) The general principles of law recognized by civilized nation; 

(d) Subject to provisions of Article 59 judicial decisions and the 

teachings of the most highly qualified publicists of the various 

nations, as subsidiary means for the determination of rules of 

law. 

The sources enumerated in Article 38(1) are not stated to 

represent a hierarchy but they do represent an order of importance, 

which in practice the court may be expected to observe. 26 

For instance, if there is a dispute between two states, the first 

point an international tribunal will examine will be the treaty 

governing the particular relationship breached, and if there is no 

treaty then custom will be examined. But it is possible that neither 

26 Ibid.

190 

treaty nor custom may be apparent for the international tribunal to 

base its decision upon. In such a situation an international 

tribunal will have recourse to the general principles of international 

law recognized by civilized nations. But if the conventions, 

practices and principles are not clear from evidences of the 

contesting states, the tribunal may resort to judicial decisions and 

techniques of the most highly qualified publicists of the various 

nations as subsidiary means for the determination of the rules of 

law. 

However, Gasiokwu citing P.K Menon says: 

27 Gasiokwu and Dakas, Op. cit P. 37 

From the wordings of Article 38(d) of the statute of 

the ICJ it is obvious that the sources of 

international law fall into two categories, namely 

primary and subsidiary sources. The primary 

sources are (1) international conventions, whether 

general or particular, establishing rules expressly 

recognized by the contesting states; (2) 

international customs, as evidence of a general 

practice accepted as law, and (3) the general 

principles of law recognized by civilized nations. 

The subsidiary sources…. Are judicial decisions 

and techniques of the most highly qualified 

publicists of the various nations? It is thus clear 

that the primary sources and the subsidiary 

sources are not placed on the same footing. 

Judicial decisions and techniques of publicists are 

not independent sources but are mere subsidiary 

means for the determination of rules of law? 27

191 

From the foregoing, the sources of international law can be 

categorized as follows: 

(i) Treaties 

(ii) Custom 

(iii) General principles of law recognized by civilized nations 

(iv) Judicial decisions and the writings of eminent jurists 

4.5.1 Treaties 

A treaty can be defined as an international agreement 

between states or a state and other entities. The Vienna Convention 

on the law of Treaties, 1969, defines a treaty as an agreement 

whereby two or more states establish or seek to establish a 

relationship between themselves governed by international law 28. 

However a treaty is not just an agreement between states, 

there can be a treaty between states and international 

organizations or non-state entity. Treaties are of two types: 

(a) Law making treaties: 

These constitute direct sources of international law. Custom, 

which is the oldest source of international law, was lacking in 

terms of regulating common interests of international society of 

states. As a result, law-making treaties were evolved to meet these 

28 Articule 2 vienna Convention on the Law of treaties 1969

192 

demands. From the 19 th century law-making treaties were given a 

great applause. 

These treaties constrain rules of international law that are of 

general or fairly general application. 

There is the United Nations Treaty series being compiled since 

1946 by the United Nations. These series contain treaties entered 

into under the auspices of the United Nations. The United Nations 

Charter also enjoins every member nation to register with its 

Secretariat any treaty entered into with another country. Failure to 

comply with this though does not invalidate the treaty, it leads to 

non recognition of the treaty by all the organs of the organization. 

A treaty may be bilateral; that is when it involves only two 

contracting parties, it is multilateral when it involves more than 

two contracting parties. A treaty binds only parties to it. Any non- 

party that intends to be bound by the provisions of the treaty must 

indicate intention to be so bound. 

(b) Treaty contracts: 

These do not constitute direct source of international law. 

They could be between parties or signatories or they may constitute 

particular law. This explains the use of the phrase, international 

conventions whether general or particular… appearing in art 38(1) 

(1) of the ICJ statute.

193 

The distinction between law making treaty and treaty contract 

is that, a treaty contract is more likely to be terminated by the 

outbreak of war between the parties than a law making treaty. 

Treaties are the major instruments of co-operation in 

international relations. Co-operation often involves a change in the 

relative positions of the states involved. For instance, rich nations 

give financial support to poor nations. 

Treaties are often used as instrument of change and to some 

extent treaties have begun to replace customary international law. 

Where there is an agreement about rules of customary 

international law, they are codified by rules of treaty. Where there 

is a disagreement or uncertainty, states tend to settle disputes by 

ad hoc compromises, which also take the form of treaties. 

4.5.2 Custom 

Since ancient times, rules of custom evolved after a long 

historical process resulting in their recognition and acceptance by 

the international community as law. Custom is said to be the oldest 

and most important source of international law. However, certain 

factors have reduced the importance of customs as a source of 

international law. These factors are:

194 

(a) The unprecedented increase in the number of treaties by 

states in the last century. 

(b) The codification of rules of customary international law, as 

law making treaties by the International Law Commission. 

(c) Evidence of customary international law can be found in the 

actual practice of states. 

This can be found in published materials on diplomatic 

relations between states, from statements made by government 

spokesmen, press releases at international conferences and also 

from state laws and judicial decisions of municipal courts. 

Evidence of customary international law may sometimes be found 

in the writings of international lawyers and in judgements of 

international tribunals, which are mentioned as subsidiary means 

for determination of rules of international law in Article 38 (1) (d) of 

the ICJ Statute. 

A case in point in is the Pacquette Habana 29. In this case, the 

United States Supreme Court after examining with great care and 

precision of all the available facts including treaties, state practices, 

diplomatic correspondences, municipal courts‟ decisions and the 

writings of jurists accepted the existence of a valid customary rule. 

29 (1900) 175 us 677, 700-7001.

195 

Similarly, in 1963 the British Government had adopted a number 

of regulations for the prevention of collision at the sea. In 1864, the 

American Congress virtually adopted the same regulations, as did 

most of the maritime states within a short span of time. So when a 

British ship, the Scotia collided in mid ocean with the Berkshire, 

an American vessel, which was not carrying the lights required by 

the new regulations and as a result of the collision, the Berkshire 

sunk. The bone of contention was whether the courts should apply 

the new customary rules that had evolved from the adoption of the 

British rules, or the general maritime rules, which were in force 

before the British regulations. In opting to apply the new rules to 

the case the United State Supreme Court laying the fault on the 

Berkshire said: 

It is not giving to the new statutes of any nation 

extraterritorial effect, it is not treating them as 

general maritime laws, but it is the recognition of 

the historical fact that by common consent of 

mankind these rules have been acquiesced in as 

of general obligation. Of that fact we think we may 

take judicial notice. 30 

Similarly, official or military manuals may indicate the 

existence of a course of conduct followed by states concerning 

military affairs. In Rv Keyn 31, Lord Coleridge clarified the question 

of evidence of custom in the following terms: 

30 The Scotia (1871) 14 Wallace 170. 

31 (1876) 2 EXD 63

196 

The law of nations is that collection of usages 

which civilized states have agreed to observe in 

the dealings with one another. What these usages 

are whether a particular one has or has not been 

agreed must be a matter of evidence. Treaties and 

acts of states are but evidence of the agreement of 

nations. And do not in this country at least per se 

bind the tribunal. Neither certainly does the 

consensus of jurists, but is evidence of agreement 

of nations on international points and on such 

points when they arise, the English courts will 

give effect as part of English law to such 

agreements 32 

Treaties too can be evidence of customary law. If a treaty 

claims to be declaratory of customary law, or is intended to codify 

customary law, it can be quoted as evidence of customary law even 

against a state that is not a party to the treaty. Such a state is not 

bound by the treaty but by customary law. If such a state can 

produce other evidence to show that the treaty misrepresents 

customary law, it can disregard the rule stated in the treaty. (This 

possibility applies only to non-state parties to the treaty.) There is 

also the likelihood that customary law may metamorphose in order 

to conform to an earlier treaty. 

For instance, the declaration of Paris 1856 altered certain 

rules about the conduct of war at sea. As a treaty, it only applies 

between parties to it. Subsequently however, the rules contained in 

32 R.V. Keyn (1876) 2 EXD 63

197 

the declaration were accepted by a large number of other states as 

rules of customary international law. 

A resolution passed at a meeting of an international 

organization is not conclusive evidence of customary international 

law. 

It has been examined in conjunction with all the other 

available evidence of customary international law. It may thus be 

possible to prove that the resolution is not a correct state of 

customary international law. 

4.5.3 Elements of custom 

There are certain constitutive elements, which are required 

for the evolution of the principles of customary international law. 

There are certain tests, which will have to be satisfied by a practice 

before it can assume a rule of customary international law. 

These include: 

(a) The problem of repetition (uniformity and consistency) 

It is an established principle of law that a single precedent is 

not sufficient for the creation of a rule of customary international 

law, which is usually formed by a constant and reciprocal practice. 

Thus in the Asylum case, 33 a Peruvian national who was charged 

33 ICJ Reports (1950) 276

198 

with the offence of rebellion sought refuge in the Colombian 

embassy in Peru. A Convention on asylum between Colombia and 

Peru provided that a political fugitive granted asylum was entitled 

to safe conduct to enable him leave the country. The Peruvian 

government rejected the Colombian government contention that it 

was for the state granting asylum to make a decision binding on 

the territorial state as to the nature of the offence for which the 

fugitive was being tried. The ICJ citing the provisions of Art 38 of 

its Statute held that a customary rule must be based on “a 

constant and uniform usage". 

The court refused to recognize the existence of a custom as 

claimed by Colombia. The grounds were that the evidence disclosed 

so much uncertainty in the exercise of diplomatic asylum and the 

official views expressed on several occasions that it was impossible 

to discern any constant and uniform usage that might give rise to a 

custom. 

It can be deduced from the decision of the court that what 

prevented the formation of a rule of customary international law in 

the Asylum case 34 was not the absence of repetition, but the 

presence of major inconsistencies in the practice. On the other 

34 ICJ Reports (1950) p 276

199 

hand, minor inconsistencies in the practice do not prevent the 

creation of a rule of customary international law 35. However, in the 

case of the United States Nationals in Morocco, the ICJ held that 

where there is no practice which, goes against an alleged rule of 

international law, a very small amount of practice is sufficient to 

create a rule of customary international law 36. 

b) Generality of practice 

Under the provisions of Article 38 (1) of the ICJ Statute, it 

appears that the practice has to be universal before it can be 

accepted as general. It is a fact that it is difficult to formulate any 

definite rule as to the number of states, which must adopt a 

practice before a rule of customary international law, can be 

created. However, the courts have been given a wide and 

undeterred discretion to determine the number and importance of 

states whose participation is necessary for creating rules of 

customary international law. A state that relies on a custom has 

the obligation to whom to the satisfaction of the court that the 

custom is of general application. 37 In this case, British fishermen 

had been fishing over the coast of Norway since 1906 and at 

35 Ango-Norwagian Fisheries case ICJ Reports (1950) 276 

36 Akehurst, M A Modern Introduction to International Law (London : George Allen & Unwin ; (1978) p28 

37 The Anglo-Norwagian Fisheries Case ICJ Report (1950) p276

200 

different times certain incidents led to diplomatic exchanges about 

Norway‟s coastal limits. The Norwegian limit of four miles of 

territorial sea had been established by Royal Decree in 1812 and 

later Decrees of 1869, 1881 and 1889 continued the policy of 1812. 

By a Decree of July 12 1935, Norway applied the system in a 

stricter manner than before. The United Kingdom contested the 

validity of the new line after a series of incidents involving British 

vessels. The UK had not formally protested the position of the 

baseline until 1933 and its silence was taken as acquiescence. 

b) Opinio juris sive necessitis 

This is the psychological conviction on the part of the states 

that a certain form of conduct is required by international law. 

Rules of customary International law evolve from similar and 

repeated practices of states repeated with conscious conviction of 

the parties that they are acting in the fulfillment of a legal 

obligation. 

It is however difficult drawing distinction between permission 

and rules imposing duties as was illustrated in the Lotus case 38. 

In this case, as a result of negligence on the part of the 

French naval officer, a French merchant ship collided with a 

38 PCIJ Reports (1927) p28

201 

Turkish merchant ship. As a Turkish rule, criminal prosecution in 

matters of collision with respect to persons belonging to a ship 

could be brought only before the court of the state whose flag the 

ship flew. France therefore had no jurisdiction to try the officer for 

manslaughter. 

The issue was whether Turkey had jurisdiction to try the 

officer. The PCIJ accepted the Turkish argument that there was 

permissive rule empowering Turkey to try the officer. Similarly, in 

the North Sea Continental shelf cases, 39 the ICJ insisted on strict 

proof of opinio juris. In this case, the rule in Article 6 of the Geneva 

Convention on the Continental Shelf 1958, concerning equi-distance 

special circumstances Principle of delimiting the continental shelf 

was held by the court not to have become a rule of customary 

international law merely on the grounds of subsequent practice 

based on the convention. 

In order for a rule of customary international law to develop, 

it must have at some stage been possible to discern from the 

conduct of a group of states that they should act in that way. 

39 ICJ Reports (1969) p3

d) Duration of a practice 

202 

The question often arises as to the length of time required 

before a rule will be accepted as a customary rule of international 

law. Where there is consistency, the period of time over which a 

given practice has been adhered to is a relevant, though seldom 

vital factor. Usually, a long established usage will be more readily 

accepted by a tribunal as giving rise to a rule of customary 


Certain rules have developed fairly quickly and matured from 

a short time of practice into customary international law. 

4.5.4 General principles of law recognized by civilized nations 

The insertion of this phrase in the ICJ statute came in order 

to provide a solution in cases where treaties and custom provide no 

guidance. It was feared that the court might be unable to decide 

some cases because of lacunae in treaty law and customary law. 

The phrase is however not defined anywhere in the statute. This 

has given room for several speculations as to the so-called “civilized 

nations” and the recognized principles of law”. As regards the 

“Civilized nations,” it is opined that in the early period of 

development, international law was dominated if not exclusively 

dictated by European states. These states were the repository of

203 

civilization, it is therefore not out of place to believe that the 

drafters of the ICJ Statute had these countries in mind. 

However, so many events have taken place since then 

therefore, altering the monopoly of knowledge hitherto held by 

these European countries. And many other countries of the world 

including Africa now serve in the same international organizations 

with these countries, it may be argued that they can rightly claim 

to belong to the “civilized nations”. 

Concerning the “general principles of law”, the ICJ and other 

international tribunals have tried to make some pronouncements 

on what the phrase means. In as much as these pronouncements 

are not consistent, they helped to give an insight into what the 

phrase is all about. Some decisions of the international tribunals 

suggest that these principles refer to those applicable in municipal 

courts. In the Damage to Portuguese Colonies in South Africa, 40 It 

was stated: 

40 (1928) Arbitration 2 RTAA 13 101 

That the absence of international law applicable to 

the case, the arbitrators consider that they should 

fill the gap by deciding in accordance with 

principles of equality, while keeping within the 

spirit of international law, applied by analogy, and 

taking account of its evolution.

204 

Generally speaking, the phrase has been defined to mean: 

(a) General principles of international law; and 

(b) General Principles of municipal law 

4.5.5 Judicial decisions 

The international court of justice, which took over from its 

predecessor, the Permanent Court of International Justice, is about 

the only existing permanent World Court with a general 

jurisdiction. The judgements and advisory opinions of the Court 

have helped in no little way towards the development of 

international law. This is despite the fact that the decisions of the 

court do not create precedents of general binding force. Article 59 

of the ICJ Statute is very explicit on this. The Article is to the effect 

that, the decision of the court in any matter binds the parties and 

in respect to the particular dispute only. The Court has however 

continued to draw inspiration from its past decisions as a way of 

analogy and guidance. 

Municipal court decisions do also help in throwing light to 

several international law issues especially as are perceived by 

states.

205 

4.5.6 Writings of eminent jurists 

The world „publicists‟ as enshrined in the provisions of Article 

38(1) (d) of the ICJ Statute means learned writers. 

Like judicial decisions, writings of jurists can be evidence of 

rules of customary international law. They also help in developing 

new rules of international law. 

4.5.7 Equity and natural justice 

Equity is used here as a synonym for justice. Those who look 

up to equity as a source of international law often appeal to natural 

law in order to strengthen their argument and to avoid accusation 

of subjectivism. 

Thus, the three terms, equity, natural justices and good 

conscience tend to merge into one another. During the 16 th and 

17 th centuries, natural law was a major source of international law. 

Some times judges and arbitrators do invoke equitable 

considerations. A judge or an arbitrator can always use equality to 

interpret or fill gaps in the law but he may not give a decision ex 

aequo et bono (that is according to the concepts of justice and 

fairness), unless he has been expressly authorized to do so. 

Whatever the position may have been in the past, it is 

doubtful whether equity forms a source of international law today.

206 

Lawyers and judges in municipal courts frequently appeal to 

considerations of equity and justice when the authorities are 

divided on a point of law, but that does not lead to equity being 

regarded as a source of municipal law or international law. 

4.5.8 Hierarchy of sources 

There is much argument as to weather the sources of 

international law are mentioned in a hierarchical order by Article 

38(1) of the Statutes of the International Court of Justice. 

The views have always maintained that the sources are not 

mentioned in a hierarchical order but mainly complementary and 

interrelated 41. 

Since the 19 th century, treaties have come to play an 

important role in the development of international law. It has been 

accepted that treaties are more superior in the development of 

international law. The question often arising is as regards what 

happens in situations where there is a conflict between a treaty and 

an accepted or established principle of international law. In the SS 

Wimbledon case, the PCIJ held that the treaty should take 

precedence over customary rules of international law. However, 

problems may arise where a custom has been clearly established 

and then a treaty covering the same subject comes into force. The 

41 Nicaraguav United States of America (1986) ICJ Reports 14

207 

provisions of the treaty takes precedence, provided at least by the 

Vienna convention on the Law of Treaties, 1969, they are not in 

conflict with peremptory norms of international law referred to as 

jus cogens. Treaties like the Vienna Convention on the Diplomatic 

Relations, 1961 and on the Law of the Sea, 1982 codified existing 


When a treaty first comes into force it overrides customary 

law as between the parties to the treaty. One of the reasons why 

countries enter into treaties is that they regard rules of customary 

international law on the subject as inadequate. Where a treaty 

cases being used, a new rule of customary law usually emerges. 

Thus treaties and custom are equal in authority the later in time 

prevails. 

Since general principles of law is to fill any gaps in treaty law 

and customary law, it is implied that general principles are 

subordinate to treaty law and customary law, that is treaty law and 

customary law prevail over general principles of law in the event of 

conflict. 

Under the provisions of Article 38 (1) (d) of the statute, 

judicial decisions and writing of publists have been described as 

“subsidiary means for the determination of rules of law”. This 

suggests that they are subordinate to treaty law, customary law

208 

and general principles of law. Judicial decisions normally carry 

more weight than writings of eminent jurists but there is no hard 

and fast rule, much depends on quality of the reasoning which the 

judge or writer employs. It is doubtful whether equity is a source of 

international law at all today. Even if it is, existence of such doubts 

would appear to indicate that it is at most a very low-ranking 

source. 

4.5.9 Peremptory norms of international law: jus cogens 

It has been seen that international law developed from the 

consistent practices and usages of states. These practices and 

usages through the passage of time, consistency and psychological 

expectations crystallized into a body of rules of conduct recognized 

as law. From these processes, certain behavioural patterns 

expected of states became established that their non-observance is 

no longer permissible by international community. This is what 

underlies the concept of jus cogens. Though it predates the Vienna 

Convention on the Law of Treaties of 1969, the Convention 

recognized its existence and incorporated of 1969; the Convention 

recognized its existence and incorporated it. For the purpose of the 

Convention, it is defined as, 

A body of peremptory principles or norms from 

which derogation is not permitted and which may

209 

therefore operate to invalidate a treaty or an 

agreement between states to the extent of the 

inconsistency with any of such principles or 

norms. 42 

The concept draws analogy from the municipal law doctrine of 

public policy, which at common law renders any contract, which 

offends it to be void. Like public policy, jus cogens presents a 

problem of precise definition but is usually used as a basis of 

voiding treaty obligations that are onerous or as a means of 

exercising interference in domestic jurisdiction. 

Under customary international law, jus cogens means the 

body of those general rules of law whose non-observance may affect 

the very essence of the legal system which they belong, to such an 

extent that the subject of law may not be under pain of absolute 

nullity depart from them in virtue of particular agreement. 43 

One major problem of the concept is the difficulty of its 

identification. It is generally accepted that new peremptory norms 

can emerge 44. This presupposes that it can develop just like other 


However, there is lack of consensus as to the principles that 

constitute norms of jus cogens. Some of the generally accepted 

42 Article 53 of the Convention on the Law of Treaties of 1969. 

43 Sinmclair, I.M. The Vienna Convention on the Law of Treaties, 1969 p3 

44 Article 64 of the 1969 Convention

210 

norms include prohibition against the threat or use of force, the 

doctrine of pacta sunt servanda. 

It has also been suggested that the principle of equality of 

states, and peaceful settlement of disputes constitute norms of jus 

cogens. 

These norms are conditioned by the interest of international 

community as a whole. It can therefore render inoperative usages 

and practices, which conflict with it 45. But even in this area, the 

controversy surrounding international law due to doctrinal 

deference rears its head. Schwarzenberger, an extreme positivist is 

of the view that, the evidence of international law on the level of 

unorganized international society fails to bear out any claim for the 

existence of international jus cogens 46. 

He reiterates the arguments of the positivist by saying that 

the absence of central government with courts of coercive and 

compulsory jurisdiction to formulate rules akin to those of public 

policy on the national level denies any meaningful comparison 

between the two. 

45 Starke, JG Introduction to International Law (London: Butterworths; 1977) p65 

46 Shwarsemberger, G. International law and Order p29

211 

4.5.10 Resolutions of international organizations 

One aspect not mentioned by Article 38 (1) of the Statue of 

the International Court of Justice as a source of international law 

but one that needs mention are the resolutions adopted on the floor 

of International organizations, especially the United Nations 

Organization, which has become very dominant in international 

sphere. 

International organizations are a relatively recent 

phenomenon in international law. Their entry into the sphere of 

international law has brought many changes to the subject. As 

regards the resolutions passed by these organizations, one view 

appears certain that such resolutions do not have the force of law 

except if such resolutions have been persistently observed, then 

they become binding as rules of customary international law. 47 

From this view, it is discernible that resolutions of 

international organizations can serve as evidence of practices of 

states on such aspects of international law that such resolutions 

deal with. If this is the case, then, resolutions of international 

organizations merely contribute in some way in the formation of 

rules of customary international law. The contribution is in the 

sense that when an issue of international concern is tabled and 

47 Sloan, B., General Assembly Resolutions Revisited, 58 BYBIL (1987) 93

212 

debated on the floor of an organization, the views of several states 

are made known through their representatives based on the 

contributions that they have made on the debate. Resolutions 

adopted are based on these views and standpoint. In some 

instances, these resolutions are adopted unanimously without 

debate. It can safely be taken that such resolutions represent state 

practices on the issues tabled and considered. As has been 

succinctly put, when the United Nations General Assembly 

resolution proclaims principles of international law and law 

adopted unanimously, it represents the law as generally accepted 

in the international community. 48 

International Court of Justice and other international 

tribunals have also tended to give considerable weight to General 

Assembly resolutions as evidence of state practice. 

In the Nicaraguan case, 49 the ICJ relied almost exclusively on 

the General Assembly resolution when it stated the law on the use 

of force and intervention. 

4.5.11 Non binding standards: soft law 

Mention must also be made of some non binding instrument 

that spell out rules of conduct that are not intended to be legally 

48 UN Oct A/ Ac 105/c.2 SR.20 p.11 

49 ICJ Reports (1986) p. 184

213 

binding and therefore cannot be enforced in court. Though not 

legally binding, they have some influences on international law 

because they may eventually harden into customs. Such non- 

binding instruments, policies and declarations are what constitute 

soft law. Examples of soft law include the Helsinki Final Act of 

1975; the Bonn Declaration on International Terrorism of 1978 and 

the Rio Declaration on the Environment and Development of 1992. 

The main value of soft law is that it functions as a device to 

overcome a deadlock in relations between states pursuing 

conflicting ideological or economic aims. 

Their development in the international legal system is as a 

result of some imperfections in the system. International legal 

system is imperfect and immature as compared to national legal 

systems because of the absence of formal organizational structures 

that ensure compliance with passed legislation. 

The term has however come under heavy criticisms from 

several writers. According to Sztucki, there can be no two levels or 

species of law. Something is either law or not law. Secondly, 

according to him, the concept is counter productive because it 

creates illusory expectations or even inconsistencies of compliance 

with what no one is obliged to comply with.

214 

Despite the above criticisms, soft law is important for the 

development of international law. This is so because when 

representatives of different states meet and express sentiments on 

a global issue, these sentiments are bound to influence state 

practices on such matters which may ultimately harden into opinio 

juris which will crystallize into legally binding rules of customary 


4.6 INTERNATIONAL CONVENTIONS (TREATIES) AS SOURCES OF 

DIPLOMATIC AND CONSULAR LAW 

Treaties represent a source of international law, the 

importance of which is ever increasing. According to Article 2 of the 

Vienna convention on the law of Treaties, a treaty can be defined 

as: 

An agreement whereby two or more states 

establish or seek to establish a relationship 

between themselves governed by international 

law. 50 

A treaty, which accepted as being similar to a contractual 

agreement, can also be defined as “a written agreement-giving rise 

to international rights and obligations between states”. 51 

50 Anger B.A. & Jande G. Basic Principles of International Law (Makurdi : Oracle Business Ltd ; 2004) p12. 

51 Ibid.

215 

The effect of any treaty leading to the formation of rules of 

international law depends however on the nature of the treaty 

convened. Two types of treaties shall be looked into: 

Law-making treaties, which lay down rules of universal or 

general application; and 

Treaty-contracts, this refers to a treaty between two or more 

states dealing with a special matter concerning these states 

exclusively. 

The law-making treaty is directly a source of international 

law. It developed out of the urgent demands of the international 

society of state for the regulation of its common interests which 

custom could not meet. These urgent demands arose from the 

changes, which were transforming the whole structure of 

international life, that is, the industrial and economic 

developments, and international communications, which were 

bringing states into closer intercourse with each other, and made 

their relationship complex. This complexity made the call for law- 

making treaty necessary, especially concerning areas like Red 

Cross work, the protection of industrial property, the protection of

216 

submarine cables, the suppression of the slave trade, control of 

narcotics, just to mention a few. 52 

The law-making treaty is of two types: 

Enunciating rules of universal international law, example, the 

United Nations Charter; 

Laying down of fairly general rules. Some multilateral treaties 

are to a large extent either confirmatory of or represent a 

codification of customary rules, as the Vienna convention on 

Diplomatic Relations of 18 April, 1961. 

Treaty contracts are not directly a source of international law 

as law-making treaties. They may however, between parties or 

signatories, constitute particular laws; hence the use of the 

expression „particular‟ conventions in Article 38(1)(a) of the statute 

of the ICJ. Such treaties also lead to the formation of international 

law through the operation of the principles governing the 

development of customary rules. Two cases will be considered here. 

First, a series or a recurrence of treaties laying down a similar 

rule may produce a principle of customary international law to the 

same effect. Such treaties are thus a step in the process whereby a 

rule of international custom emerges. 

52 Ibid.

217 

Treaties share this function with diplomatic acts, state laws, 

state judicial decisions and the practice of international 

organizations. An illustration is the series of bilateral extradition 

treaties concluded during the 19 th century from which such general 

rules, as those that the nationals of the state demanding 

extradition and nationals of third states are extraditable, were 

deduced and were considered as being general application. 

Secondly, it may happen with a treaty originally concluded 

between a limited numbers of parties only, that a rule in it be 

generalized by subsequent independent acceptance of imitation. In 

this case, the treaty represents the initial stage in the process of 

reassurance of usage by which customary rules of international law 

have evolved. Thus, for instance, the rule “free ship, free goods”, 

that is, that enemy goods carried on a neutral vessel are in general 

immune from belligerent action, first appeared in treaty of 1650 

between Spain and the United provinces, and became established 

only at a much later period after a long process of generalization 

and recognition. 

4.6.1 Basic treaties on diplomatic and consular law 

Perhaps until after the Second World War, diplomatic and 

consular practice was almost entirely regulated by customary

218 

norms. The only existing treaty then was the 1815 Congress of 

Vienna on the ranks of diplomatic representatives with Anchen 

Protocol of 1818 as a supplement. After the Second World War, 

under the United Nations, some treaties were concluded for 

purposes of codifying the progressive development of diplomatic 

and consular law. 

Some of these include the 1961 Vienna convention on 

Diplomatic Relations which entered into force in 1964; the 1963 

Vienna Convention on Consular Relations which came into force in 

1967, the 1969 New York Convention on the Prevention and 

Punishment of Crimes against Internationally protected person, 

including Diplomatic Agents which came into force in 1977, the 

1975 Vienna convention on the Representatives of States in their 

Relations with International Organizations of a Universal 

Character. 

The Corresponding terms in respect of Privileges and 

immunities of international organizations are usually contained in 

their charters. Two basic conventions are in force with regard to the 

United Nations and its specialized Agencies namely; the 1946 

convention on the privileges and Immunities of the UN specialized 

Agencies. The UN and its specialized Agencies have also bilateral

219 

agreements with host states on questions of privileges and 

immunities. The privileges and immunities of regional organizations 

are governed by regional agreements. 

4.7 INTERNATIONAL CUSTOM AS SOURCE OF DIPLOMATIC 

AND CONSULAR LAW 

Until after the several world wars and before the Vienna 

congress of 1815, custom dominated and regulated diplomatic and 

consular relations between states. 

The ICJ in the Asylum Case: Columbia vs. Peru (1950) 53 

described custom as a constant and uniform usage, accepted as 

law, that is those areas of state practices which arise as a result of 

a belief by state that they are obliged by law to act in the manner 

described. 

Brownlie lists evidence of custom to include diplomatic 

correspondence, policy statements, press releases, and the 

opinions of official legal advisers, official manuals on legal 

questions, executive decisions and practices, orders to naval forces, 

comments by governments on drafts produced by the international 

law commission, state legislation, international and national 

judicial decision, recitals in treaties and own international 

53 Maclean, op. cit. P. 11.

220 

instruments a pattern of treaties in the same form, the practices of 

international organs, and resolutions relating to legal questions in 

the UN General Assembly. 54 

Following the Asylum Case, four questions remained for 

consideration: 

- What duration of practice is required? 

- How uniform and consistent must the practice be to give use 

to a rule of law? 

- How is the court to determine the subjective element in 

practice that is an acceptance that the custom is based on law? 

- How general must the practice be in order to bind third 

states? 

The jurisprudence of the ICJ indicates that no particular 

duration is required for practice to become law provided that the 

consistency and generality of a practice are provided. In the North 

Sea Continental Shelf Case (1969) 55 it was recognized that there is 

no precise length of time during which a practice must exist; simply 

that it must be followed long enough to show that the other 

requirements of a custom are satisfied. 

54 Ibid 

55 Ibid. P. 13

221 

It is clear that major inconsistencies in practice will prevent 

the creation of a rule of customary international law. However, 

complete uniformity is not required and minor inconsistencies will 

not prevent the creation of a customary rule provided that there is 

substantial practice should be both extensive and virtually 

uniform! This question of the uniformity and consistency of 

practice was returned to by the court in the Nicaragua Case 

(Nicaragua Vs US; Merits, (1986) 56 where the ICJ indicated that it 

was not necessary that all state practice be rigorously consistent in 

order to establish a rule of custom. 

To assume the status of customary international law the rule 

in question must be regarded by states as being binding in law, 

that is that they are under a legal obligation to obey it. 

The recognition of a particular rule as a rule of international 

law by a large number of states raises a presumption that the rule 

is generally recognized. Such a rule will be binding on states 

generally and an individual state may only oppose its application 

by showing that it has persistently objected to the rule from the 

date of its first formulation. 

56 Ibid.

222 

In the Anglo Norwegian Fisheries Case (1951) for example, the 

court rejecting the UK argument that the 10-mile closing line for 

bays was a rule of customary international law. The rule would 

appear to be in application as against Norway, inasmuch as she 

has always opposed any attempt to apply it to the Norwegian Coast. 

In this vein there are customary rules of diplomatic and 

consular practice that have been accepted and codified as law. 

These include the inviolability of diplomatic premise and consular 

posts, involution of archives of diplomatic missions and members of 

the diplomatic staff, inviolability of the private residence of a 

diplomatic staff, etc. 

4.8 GENERAL PRINCIPLES OF LAW AS SOURCE OF 


General principles of law of civilized nation is another source 

of law used by European countries in their relation with one 

another before the codification of law to be used by the subjects of 

the international arena. In the absence of a treaty or other loophole 

or international customary law, the general principles of laws 

recognized by civilized nations come into reckoning. 

These principles include respect for acquired right or vested 

right, peaceful coexistence, sovereign equality of states, fair and

223 

equal treatment, just to mention a few. These general principles are 

less a material source of international law than a particular 

instance of judicial reason and logic which the most authoritative 

international tribunal of the day is specially enjoined to employ. In 

other words, they are so well established and known that the 

judges who apply them do not require precedent to lean on in doing 

so. 

The major problem arising from use of these principles is the 

question surrounding the definition of the concept „civilized nation‟. 

There is no generally accepted definition of this concept; what 

might be termed „civilized nations‟ by a set of people might not be 

so with other groups of people. 

Another problem is also created by the question of the 

determination of general principles. In some states, a particular 

legal system is in practice or existence, for example almost 

unrealistic. 

57 Ibid. P.18 

According to Lord Phillimore: 

The general principles referred to … were those, 

which were accepted by all nations in foro 

domestico, such as certain principles of 

procedure, the principle of good faith, and the 

principle of res judicata. 57

224 

In this way private law, being in general more developed than 

international law has provided a reserve store of legal principles 

upon which international law can draw. 

Oppenheim states that: 

The intention is to authorize the correct court to 

apply the general principles of municipal 

jurisprudence, in particular of private law, in so 

far they are applicable to relations of states. 58 

One other difficulty in evaluating the role of these general 

principles, however, is that Article 38(1)(C) does not make clear if it 

is referring to general principles of international law recognized by 

civilized nations or general principles of law in the broadest sense, 

including principles of private law which have their counterpart in 

most developed legal systems. 

4.9 JUDICIAL DECISIONS AND TEACHINGS OF THE MOST 

apply: 

58 Ibid. 

HIGHLY QUALIFIED PUBLICIST AS SOURCES OF 


Article 38(1)(d) of the status of the ICJ directed the court to

225 

… Subject to the provision of Article 59 judicial 

decisions and the teaching of the highly qualified 

publicists of the various nations as subsidiary 

means for the determination of rules of law. 59 

Article 59 of the status of the court provides that the decision 

of the court has no binding force except between the parties and in 

respect of that particular case. 60 

There is, therefore, no binding authority of precedent in 

international law and international court and tribunal cases do not 

make law. Judicial decisions are not therefore, strictly speaking a 

formal source of law. It can be argued, however that if an 

international tribunal is unable to discover an existing treaty or 

customary rule relevant to a dispute, any rule that the tribunal 

adopts in deciding the case will, in theory at least, form a new rule 

of international law. Several decisions of the ICJ have introduced 

innovations into international law which have subsequently won 

general acceptance. For instance: 

In The Anglo-Norwegian Fisheries Case (1951) 61, Norway had 

promulgated a series of decrees as the base line of Norwegian 

territorial waters the general line of the Skjaergaard – a series of 

59 Maclean, Loc. Cit. 

60 Article 59 of the Statute of The International Court of Justice 

61 International Court of Justice Report, P. 116.

226 

islands and rocks stretching along Norway‟s north-western coast, 

often at considerable distance from the main land. As a result a 

large area of what was from the mainland. As a result a large area 

of what was formally high seas became enclosed as Norwegian 

national waters and closed to British fishing. 

The UK contested the legality of Norway‟s act before the ICJ. 

The court held that the method of baseline employed by Norway 

was not contrary to international law given, inter alia, the special 

geographical facts involved and the economic interests peculiar to 

the region. 

The court in effect, therefore, created a new rule of 

international law for the delimitation of the territorial sea in those 

parts of the world where peculiar geographical and economic 

factors are present. 

And in The Reparation Case (1949) 62, the ICJ was asked to 

advice whether the United Nations had the right to present a claim 

on the international place against a state for injuries suffered by 

the United Nations officials in the performance of their duties. The 

court decided that the United Nations could claim damages under 

62 International Court of Justice Reports, P. 174

227 

International law against state responsible for injuries suffered by 

its officials. 

The courts‟ decision that such a power could be implied from 

the express functions entrusted to the organization was clearly an 

extension of the rights of the organization as laid down in the 

charter and thus created a new principle in international law. 

Article 38(d) directs the court to apply: 

The teachings of the most highly qualified 

publicists of the various nations, as subsidiary 

means for determination of rules of law. 63 

Although this source once constitutes evidence of customary 

law, learned writings can also play a subsidiary role in developing 

new rules of law. The contributions of writers such as Grotius, 

Bynkershoek and Vattel were very important to the formation of 

and development of international law, and writers of general works, 

such as Openheim, Hall, Hyde, Guggenheim and Rousseau, have 

international reputations. Although it is sometimes argued that 

some writers reflect national and other prejudices, their opinions 

are used widely by legal advisers to states, arbitral tribunals and 

courts. 

63 Article 38 paragraph 1 (d) of the Statute of the International Court of Justice.

228 

It must be noted that other sources of international law 

include General Assembly resolutions and resolutions of other 

international organization. A recent example in which resolutions of 

the General Assembly were held to be reflective of customary 

international law arose in the Nicaragua Case (1986) 64. In that case 

majority of the court considered that GAR 2625 (1970) on 

principles of International Law Concerning Friendly Relations and 

Cooperation Among States was illustrative of customary law. 

Equity also plays a role in the international judicial process in 

the correction of over-rigorous law, in the filling of gaps, and in the 

abrogation of law. 65 

Treaties not yet in force may also be persuasive as between 

those states that have signed and ratified the treaty. This could 

also be significant in international judicial process. 

Draft treaties and tests adopted by the International Law 

Commission can also be considered as evidence of law. 

A number of commentators have suggested that there is a 

developing body of lex mercatoria, which may be applied by 

international courts and tribunals in the case of disputes involving 

64 Maclean, op. cit. P.24 

65 O’Connell, D.P. International law for Students (London: Stevens & sons; 1971) P.6

229 

questions of international trade. International trade practice and 

usages therefore play a role in international judicial process.

230 

CHAPTER FIVE 

INTERNATIONALLY PROTECTED PERSONS 


The advantages that accrue to states all over the world as a 

result of interaction among them are numerous. As a matter of 

fact the study of international relations in contemporary times is 

an introduction to the art and science of the survival of mankind. 

If civilization is killed within the next thirty years, it will not be 

killed by famine or plague but by foreign policy and international 

relations. Possessing unprecedented instruments for national 

action in the forms of ideologies and weapons, the nation-States 

have become even more dangerous vehicles of international 

conflict. 

People have very much in common in human nature, human 

needs and human hopes; but so far we have been incurably 

diverse in our own languages, cultures, religion, philosophies, and 

(most of all) governments. Although people are incurably diverse, 

they are also inescapably interdependent. And in some respects 

this interdependence has increased in this day of the shrinking 

world.

231 

The world is interdependent in far more ways than simply 

politics and power. It is known vaguely that science, technology, 

and medicine are “international” but few of us have stopped to 

think just what this means. It means, in sober fact; that no people 

and no country in the world could have reached its present level of 

technology, prosperity, and health-nor could it maintain its 

present rate of progress without the decisive aid of foreign 

discoveries and foreign contribution. 

No county could keep many of its own people alive without 

the help of foreigners. In our hospitals and doctors‟ offices, 

thousands of lives are saved daily by the application of discoveries 

and medicines developed by scientists in other countries. And if 

tomorrow all remedies developed by foreigners should lose their 

power, the number of dead in our streets would be appalling. 

Based on the above, interaction in the international system 

is inevitable. The very survival of the system depends on it. Since 

states must interact, their agents must do so on their behalf. 

These agents who are representatives of states are accorded 

protection within the system to ensure their effectiveness. 

Over the years this interaction has proved not only to 

redeem tensions and wars among states, it has also provided

232 

mutual cooperation among them for the advancement of mankind 

and peace. Likewise, international organisations and their agents 

have also become instruments of development and provision of 

many infrastructures and services like rural electrification, 

irrigation canals, pipe-borne water, educational materials, 

vaccines, etc especially in the developing world. 

The 1973 United Nations resolution 3661(XXVIII), which was 

adopted on the 14 th December, 1973, and came into force on 20 th 

February, 1974, other legal documents have provided a clear 

definition of the kind of persons to enjoy international protection 

whenever they find themselves in countries outside their own. 

Thus, for example, the Netherlands legislation of 1651, 

which is one of the earliest in this regard, forbade violation of 

emissaries of foreign states. The English criminal law, Italian 

criminal code and the OAS convention followed in the same vein. 

More so, during the 1950s and 1960s, the International Law 

Commission was confronted with the question of legal status, 

privileges, immunities and facilities of diplomats and consular 

officers. The pioneering work of this commission resulted in the 

adoption of the landmark Vienna Conventions on Diplomatic 

Relations (1961) and Consular Relations (1963).

233 

However, it is necessary to observe that there are limited or 

clearly defined circumstances under which individuals can travel 

abroad and expect special protection. For instance, diplomatic 

agents or foreign envoys can only enjoy special protection on their 

accreditation to definite states or on their being assigned to 

undertake special missions abroad. In the case of monarchs, 

Heads of State, Foreign Affairs Ministers, etc., they can only be 

granted special protection by the receiving or host states on 

previous information of their intended visits. 

Moreover, the bilateral relations among states coupled with 

the concept of reciprocity strengthen the necessity for granting 

special protection to certain personalities whenever they are 

abroad. 

The ability of states to ensure protection for the 

internationally protected persons has become an issue of prestige 

and acceptable norm in the international community.

234 

5.2 INTERNATIONALLY PROTECTED PERSONS 

The 1973 United Nations (New York) Convention on the 

Prevention and Punishment of Crimes Against Internationally 

Protected Persons, Including Diplomatic Agents, which was 

adopted by the General Assembly Resolution 31661 defines 

internationally protected Persons under its Article 1 as follows: 

(a) A head of State, including any member of a collegial body 

performing the function of a Head of State, under the 

constitution of the State concerned, a Head of Government 

or a Minister for Foreign Affairs, whenever any such person 

is in a foreign state, as well as his family who accompany 

him; 

(b) Any representative or official of a State or any official or 

other agent of an international organization of an 

intergovernmental character who, at the time when and in 

the place where a crime against him, his official premises, 

his private accommodation or his means of transport is 

committed, is entitled pursuant to international law to 

special protection from any attack on his person, freedom or

235 

dignity, as well as members of his family forming part of his 

household. 1 

Another legal document, which provides definition of 

internationally protected persons, is the United Kingdom 

Suppression of Terrorism Act of 1978. Section 4(2) of Paragraph 6 

of the Act defines such person as: 

(a) a person who at the time of the act is Head of State, a 

member of a body which performs the functions of Head of 

State under the Constitution of the State, a Head of 

Government or a minister of Foreign Affairs and is outside 

the territory of the State in which he holds office; 

(b) a person who at the time of the Act is a representative or 

an official of a State or agent of an international organization 

of an intergovernmental character, is entitled under 

international law to special protection from attack on his 

person, freedom dignity and does not fall within the 

preceding paragraph; 

(c) a person who at the time of the act is a member of the family 

of another person mentioned in either of the preceding 

paragraph; and 

1 See Article I (a) and (b) of the 1973 Convention on the Prevention and Punishment of Crimes Against 

Internationally Protected Persons, Including Diplomatic Agents.

236 

(i) If the other person as mentioned in paragraph (a) above, 

is accompanying him; or 

(ii) If the other person is mentioned in paragraph b) above, as 

a member of his household; and if in any proceedings a 

question arises as to whether a person is or was a protected 

person, a certificate issued by or under the authority of the 

security or state and stating any fact relating to the question 

shall be conclusive evidence of that fact. 2 

In addition to the above definitions, other experts on 

international law have also defined and written a lot on the need 

to grant special protection to certain categories of persons who for 

one reason or the other find themselves abroad. However, the 

categorical definition of internationally protected persons by 

Franciszek Przetacznik includes any of the following: 

(a) Head of State together with members of his or her 

Collegial body in foreign States; 

(b) A head of Government together with members of his or her 

collegial body in foreign states; 

(c) A minister of foreign affairs together with members of his or her 

collegial body in foreign states; 

2 See International legal materials, Vol. 17, 1978, P.1132

237 

(d) A Diplomatic Agent in a foreign state; 

(e) A Diplomatic member of a special Mission in a foreign state; 

(f) A consular officer; 

(g) A Diplomatic member of a permanent mission to an 

international organization; 

(h) A diplomatic member of a delegation to an international 

conference; 

(i) A Diplomatic member of an observer delegation to an 

international conference 3. 

From what has been seen so far, internationally protected 

persons can be defined to be those persons who by their 

representative or functional roles on behalf of states or 

international organisations in the international system are 

accorded immunities or certain privileges by international law. 

The essence of these immunities and privileges is to ensure their 

effectiveness in the performance of their functions. Since they are 

agents of states or international organisations effort is made by 

international law to shield them from the municipal laws of host 

states. 

3 Przetacznik, F. Protection of Officials of Foreign States According to International Law (London: 

Nijhoff Publishers; 1983) P.1

238 

The various definitions of internationally protected persons 

so far examined show some consistency in which category of 

persons constitute this class. Broadly categorised, internationally 

protected persons include the following: 

(i) Diplomatic agents; 

(ii) Consular officers; 

(iii) Special missions 

(iv) Heads of Government and heads of states. 

(v) Representatives to intergovernmental organizations; and 

(vi) International officials. 

5.3 SCOPE OF PROTECTION 

Under this the following will be considered:

5.3.1 Diplomatic Agents 

239 

The Vienna Convention on Diplomatic Relations 

distinguishes between the immunity of diplomatic agents, which 

includes heads of the mission and members of staff having 

diplomatic rank. 4 It allows immunity to the administrative and 

technical staff of a mission only in respect of official acts. This also 

includes the family of diplomats so long as they form part of their 

households, and leaves open the possibility of a wife or children 

who are nationals of the receiving state having no immunities at 

all. 5 The personal immunity of the diplomat is provided for in the 

Vienna convention on Diplomatic Relations. 

4 Article 1 (e) of the Vienna Convention on Diplomatic Relations, 1961. 

5 Article 37 of the 1961 convention

240 

The Convention provides for complete immunity from 

administrative and civil proceedings. This is not with respect to 

real actions involving private immovable property situated in the 

territory of the receiving state. And also not held on behalf of the 

mission; actions in succession in which the diplomat is executor 

or heir; and actions relating to any professional or commercial 

activity exercised by the diplomatic agent in the receiving state 

outside his official functions. 6 There are distinctions between a 

diplomat‟s liability under the law and his liability to legal process. 

It is with respect to the latter only that he is immune. 7 So far as 

criminal acts are concerned there is no question of prosecution 

during the duration of diplomatic immunity. There are many 

instances where recall of the diplomat has been the remedy 

resorted to. However, whatever the situation regarding official 

acts, it is clear that with respect to non-official acts a diplomat is 

as much a subject of the local law as anyone else, even the 

criminal law. 8 The assertion by O‟Connell above suggests that 

when not performing official acts the diplomat is a subject of local 

law as anyone else. This is not exactly correct, except when a 

6 Article 31 (a)-(c). Also see Article 42 of the same Convention. 

7 O’Connell, D.P. International Law for Students (London: Stevens & Sons Ltd.; 1971) P. 363. 

8 Ibid.

241 

diplomat engages in hostage taking, trafficking in narcotics, 

enslavement, genocide, murder, all of which fall outside the 

functions of a diplomatic mission, can he be subject to local law. 

In R. Vs. A.B. 9, a clerk in the United States Embassy in London 

was alleged to have violated the official secrets Act. The Clerk was 

prosecuted and convicted because his immunity was waived, and 

he was not in the strict sense a diplomat. 

As far as criminal process is concerned the diplomatic agent 

enjoys immunity 10. 

This would appear to be a necessary rule to avoid the 

interference with diplomatic freedom, which is attendant upon 

penal proceedings. The convention declares a diplomatic agent not 

to be liable to any form of arrest of detention. 

It provides: 

9 (1941) I. K. B. 454 

10. Article 31 of the 1961 Convention 

11. Article 29 


inviolable. He shall not be liable to any form 

of arrest or detention. The receiving state 

shall treat him with due respect and take 

all appropriate steps to prevent any attack 

on his person, freedom or dignity. 11

242 

Article 29 above accords absolute inviolability to a 

diplomatic agent even if he performs an act that lacks dignity; the 

Convention provides that such lack of dignity should be protected. 

This Article completely makes it impossible to regulate the 

excesses of diplomats. 

This Article also fails to take cognizance of emergency 

situations. Should a diplomatic agent be allowed to fire a shot 

freely into a crowd with a gun? Will any effort to restrain him 

amount to a violation of his person, freedom or dignity? 

What if he gets drunk and brandishes a gun in a market 

place or is choking life out of a national of the receiving state? 

Can this provision be rigidly applied? Should he not be arrested or 

stopped from threatening human life? Will this violate his 

immunity as provided for by Article 29?

243 

To this rule of immunity from arrest there is a possible 

exception in the case where a diplomatic agent must be put under 

constraint in the interest of local order, though the constraint 

must be no more than is necessary nor endure longer than 

necessary. 12 There are two famous historical precedents in the 

cases of Gyllenburg and Cellamase, both of them ambassadors 

who were arrested for conspiracy, the one against George 1 in 

1717, the other against the Regent Orleans in 1718. 13 The arrest 

was justified by the emergency and by the necessity for preserving 

the security of the receiving state. 

In respect of taxes generally, the convention exempts 

diplomatic agents except in respect of sales (purchase) tax, 

property taxes, estate duties, taxation on private income, charges 

for services rendered, and stamp duties with respect to 

immovable property .14 

12. 

O’Connell, op. Cit. P. 364. 

13. 

Ibid 

14. 

Article 33 of the 1961 Convention

244 

The Convention provides that the receiving state shall grant 

exemption from all customs duties on articles imported for official 

use or for personal use of the diplomat and his family, and 

personal baggage is to be exempt from inspection unless there are 

serious grounds for presuming that it contains other than official 

or personal items. 15 

The Convention also upholds the immunity of the 

diplomatic agent from subpoena. He may not be summoned as a 

witness any more than as a party to proceedings, but his 

immunity can be waived. 16 

The Vienna Convention secures same inviolability and 

protection for a diplomat‟s private residence, papers and property 

as is secured to the premises of his mission. 17 

The Convention defines the diplomatic mission premises to 

be the building or part of buildings and the land ancillary thereto, 

irrespective of ownership, used for the purpose of the mission 

including the residence of the head of the mission. 18 

D.P. O‟Connell in trying to draw up a distinction between 

immunity and inviolability says: 

15. Articles 34 and 36 

16. Articles 31 (2) and Article 32. Also see R. Vs. A.B. (1941) I.K.B 454. 


18. Article 1 (e)

245 

The term “inviolability” is sometimes used 

to refer to the privileges which a diplomat 

enjoys from the legal process of the 

receiving state, when it means immunity, 

and at other times it is used in the more 

restricted sense of diplomatic dignity, 

involving the idea that the receiving state is 

responsible to the sending one to ensure 

the most vigilant protection of the diplomat 

and diplomatic premises from violence and 

insult. 19. 

The above quotation connotes that the local authorities have 

limited rights of access to and intervention within an embassy, 

and have a special duty to preserve it from insult or invasion. The 

receiving state is responsible to the sending one to ensure the 

most vigilant protection of the diplomatic premises from violence 

or insult. This sums up the words of the convention: 

The premises of the mission shall be 

inviolable. The agents of the receiving state 

may not enter them except with the consent 

of the head of the mission. 20 

19 As cited by Bloomfield, I. M. Fitzgerald, G.F.Crimes Against Internationally Protected 

Persons:Prevention and Punishment – An Analysis of the UN Convention (London: Praeger publishers; 

1975) p. 31 

20. Article 22 of the 1961 Convention.

246 

The premises of the mission, their furnishings and other 

property thereon and the means of transport of the mission shall 

also be immune from search, requisition, attachment or 

execution. 21 The convention however provides that the diplomatic 

premises be used only in a manner consistent with the functions 

of the mission. 22 

The diplomatic premise is also exempt from all national 

regional or municipal dues and taxes whether owned or leased, 

other than such as represent payment for specific services 

rendered. 23 

21 .Article 22(3). 

22. Article 44(3) 

23. Article 23(1).

247 

The provision of the 1961 convention above regarding the 

inviolability of premises of the mission takes no cognizance of 

cases of emergency. For example, the situation in which the 

premises present a pressing danger to the surrounding district by 

reason of fire breaking out or use as a firing point, or to counter- 

measures in case of a use of the premises by the staff of the 

mission for unlawful purpose. In such situations, is the consent of 

the head of the mission still necessary before the agents of the 

receiving state enter the premises? If they enter the premises of 

the mission without consent, will a defense of humanitarian 

intervention avail them? In respect of the above argument, the 

suggestion has been raised that the right to self-defense may be 

applicable in this context. It was used to justify the search of 

personnel leaving the Libyan Embassy from where a shot was fired 

that killed a police constable following a peaceful demonstration 

that took place outside the embassy on 17 April 1984, in London. 

Diplomatic relations was broken. In this case the possibility was 

noted that in certain limited circumstances self-defense might be 

used to justify entry into an embassy.

248 

5.3.2 Legal implications of the violation of premises of 

diplomatic missions 

It is clear from the foregoing that the laws governing 

diplomatic and consular relations are contained in a number of 

codified treaties which have already been enumerated in this 

work. Parties to treaties are under obligation to abide by the rules 

or principles contained therein. In order to produce a calm and 

peaceful atmosphere for the performance of duties, there have 

been instances where parties to these treaties respect consular as 

well as diplomatic archives and the premises, which house them. 

Customarily, portions of such premises are occupied by the 

foreign interests section of the mission or office of the protecting 

powers. The inviolability of diplomatic promises is so universally 

accepted that a protecting power would be justified in protesting 

on its own behalf any violation of such promises entrusted to its 

care. From the experience of World War II, a protecting power may 

properly protect on its own initiative any infringement of its rights 

under the Geneva Prisoners of War Convention, if the local state 

and the protected power are parties to that convention.

249 

As a means of protecting such diplomatic premises, it is 

important for the notification to be given to the occupying 

authorities as soon as possible in order that no pretext may exist 

for violating the diplomatic property even when under neutral 

protection. 

Furthermore, the officer assuming the custody frequently 

raises over such premises the flag of the protecting power. This is 

a procedure long sanctioned by usage, although it appears to have 

been employed less frequently in recent years than was formerly 

the case. 

When the Germans entered Lyon in July 1940, they forcibly 

broke into the British consulate and removed a number of 

correspondence files, despite the fact that the building was 

conspicuously posted with notices bearing the seal of the 

American Consulate and the signature of the American Consul 

General. 

Having breached these diplomatic immunities with impunity, 

the question that comes to mind is what is the position of the law 

where these rules are violated? What remedies are available to the 

aggrieved parties? These and other issues will now be considered.

250 

It is common knowledge that whenever laws are drafted, 

provision is made for the incorporation of panel actions into the 

instrument with a view to punishing violators of the law. One 

would have expected that these treaties should have the 

corresponding panel sections and appropriate remedies available 

to the aggrieved parties. Sadly, the Conventions are silent on the 

matter. In effect, this creates lacunae thereby leaving room for 

parties to act in forms inconsistent with the international 

obligations imposed on them as is contained within the treaties. 

However, aggrieved parties have the right to sue the 

defaulting parties in a court of competent jurisdiction. The court 

that has jurisdiction to try matters relating to international law is 

the International Court of Justice, established principally by 

Article 7 of the Charter of the United Nations. 

The Instrument governing the functioning of the court is the 

Statute of the ICJ, which forms an integral part of the Charter 24. 

The ICJ is vested with the jurisdiction to entertain disputes 

between member nations on contentious issues as well as having 

advisory capacity or disputes of an international character, which 

the parities thereto submit to it. 25 

24 Article 92 of the U.N. Charter 

25 Article 65, 66, 67 and 68 of the Statute of the ICJ

251 

In its preamble, the U.N. Charter provides as follows: 

“We the peoples of the United Nations Determined… 

…to establish conditions under which 

justice and respect for the obligations 

arising from treaties and other sources of 

international law can be maintained… have 

resolved to combine our reports to 

accomplish these aims. 

What this provision stipulates is that states, which have 

submitted themselves as parties to international treaties, are 

legally bound to fulfil and uphold the provisions contained 

therein. Unfortunately, events which seem to be unfolding show 

that states have little or no regard for these rules of inviolability of 

mission premises. 

In some cases, despite the ruling of the ICJ States have 

continuously and consistently failed to comply with decisions of 

the court. One landmark case is the celebrated case of U.S.A. V 

Islamic Republic of Iran. 26 

This matter was brought before the ICJ on the 29 th 

November, 1979. On the 4 th of November, Iranian authorities 

forcefully entered the American Embassy in Tehran, as well as the 

consulates in Tabriz and Shiraz. 

26 Cited in international Legal Materials,Vol.19 No.1 General List No.64, (The american Soceity of 

International Law, May, 1980) p.553

252 

Agents of the Iranian authorities in addition, held as hostage 

all staff of the mission and non-diplomatic American citizens, 

some of whom were taken and kept in the Iranian Foreign Affairs 

Ministry. The aim of the action of the Iranian authorities was to 

force the United States Government to bow to certain demands 

such as stopping all forms of terrorist activities against the Iranian 

government, and also to avoid meddling in the internal affairs of 

Iran. 

The U.S Government on its part, made a public outcry before 

proceeding to the ICJ. She was demanding the Court to order the 

immediate and unconditional release of All-American hostages 

(the diplomatic and non-diplomats alike). And the immediate 

vacation of the promises, which was being, violated contrary to 

norms of international conventions in force between the two 

countries and long established rules of general international law. 

That the Iranian government be made to pay reparations for the 

violations in a sum to be determined by the ICJ.

253 

Iran on its part, refused to enter appearance in the court, 

nor was it represented when hearing commenced in March 1980, 

despite the fact that Iran had been put on notice long before that 

date. The Iranian authorities continued the subjection of the 

embassy premises to occupation and embassy staff (and other 

Americans) as hostage. This gave rise to repeated and multiple 

breaches by the U.S Government, of the applicable rules of 

international law. The ICJ held that Iran had indeed violated and 

was still violating obligations owed by it to the U.S. under the 

conventions; and must take steps to redress the situation 

culminating from the events of the 4 th of November, 1979. In 

addition, Iran was under an obligation to make reparation to the 

U.S. government, the form and amount of such reparation was to 

be settled by the court. Despite the pronouncements of the court, 

Iran refused to comply with the decision. This led the U.S. 

government to impose trade sanctions upon Iran. Indeed, this is a 

clear-cut case of gross violation of mission premises and a total 

disregard for court orders, which is tantamount to contempt of 

court.

254 

It appears from the foregoing that judgements of the ICJ 

cannot be enforced. This may not be unconnected with the fact 

that there is no effective machinery for the execution and 

enforcement of the courts judgement, thereby creating yet another 

lacuna in the statute, and making a mockery of the idea of 

bringing court actions against recalcitrant states. 

Article 94(2) of the Charter provides: 

If any party to a case fails to perform 

obligations incumbent upon a state under a 

judgement rendered by the Court, the other 

party may have recourse to the Security 

Council, which may, if it deems necessary, 

make recommendations or decide upon 

measures to be taken to give effect to the 

judgement. 

As a result of the nonchalant attitude of States in complying 

with court orders, aggrieved states are sometimes forced to take 

retaliatory steps to show their disenchantment over such 

incidents of violation like the U.S did in the USA V IRAN case. This 

certainly does not augur well for either party as well as other 

members of the international community as this could load to an 

unpleasant scourge of war.

255 

5.3.3 Measures taken against the violation of diplomatic 

immunities 

Following the incessant and arbitrary increase in the rate of 

violations of diplomatic immunities, and privileges especially as it 

relates to attacks and occupation of mission premises, the United 

Nations General Assembly Adopted a convention in 1973. 

This was designed to prevent and punish crimes against 

persons enjoying international protection, with the inclusion of 

diplomatic agents. The Convention provides for the co-operation of 

states in activity opposing such violations. The Convention further 

provides that each of its signatories must initiate criminal 

proceedings against or else extradite to the corresponding state 

persons on its territory who are accused of attacking mission 

premises or means of transportation, murder or kidnapping of 

persons enjoying international protection. 

The General Committee of the General Assembly adopted a 

resolution by which it explored all violations of the principles and 

rules of international law governing diplomatic and consular 

relations.

256 

This recommendation was given on 15 th of December 1980. 

This implored all states to observe and implement them and 

strongly condemned all acts of violence against diplomatic and 

consular missions and representatives. 

It urged in particular all states to ensure, in conformity with 

their international obligations, the protection, security and safety 

of such missions and representative within their jurisdiction, 

including taking measures to prohibit their illegal activities 

against their security and safety by persons, groups or 

organizations. 27 

Other measures include the imposition of sanctions, which 

could be economic, political and social in nature or worse still, the 

severance of diplomatic ties, until strict compliance is adhered to. 

A not so common measure may be a recommendation by the 

United Nations Security Council to expel any members who 

consistently and persistently violate the principles contained in 

the charter. 28 

5.3.4 Consular Officers 

That the receiving state owes a special duty of protection to a 

consul is a rule recognised in several Consular Conventions. An 

27 Yearbook of the United Naitons, (1980) Vol. 34. 

28 Artcle 6, could be read together with Article 94 (2), U.N. Charter

257 

example of this is the Pan-Convention on Consular Agents 1928 

and the United States - United Kingdom Consular Convention 

1951. 

The 1963 Vienna Convention on consular Relations 

prescribes that consuls must respect the laws of the receiving 

state and may not carry on for professional profit any professional 

or commercial activity. 

The consular convention is more restrictive than the 

corresponding section of the diplomatic convention, which states 

unequivocally that the person of a diplomatic agent shall be 

inviolable. He shall not be liable to any form of arrest or detention. 

The receiving state shall treat him with due respect and shall take 

all appropriate steps to prevent any attack on his person, freedom 

or dignity. In contrast, the convention on consular relations 

provides: 

29. Article 40, Vienna convention on consular Relations, 1963. 

The receiving state shall treat consular 

officers with due respect and shall take all 

appropriate steps to prevent any attack on 

their persons, freedom or dignity. 29

258 

This provision on protection of consular officers does not use 

the word “inviolable”. Rather it provides only that the receiving 

state shall treat him with respect and protect him from attack on 

his freedom, person or dignity. 

As compared to that of diplomatic officers, the consular 

officers can be arrested or detained pending trial if they commit a 

grave crime, when duly ordered by the competent judicial 

authority. 

In such cases only they may be imprisoned or otherwise 

restricted, provided their steps are in execution of a judicial 

decision of final effect. 30 Consular officers are entitled to immunity 

from civil and administrative jurisdiction from the receiving state 

in respect of acts performed in the exercise of consular functions. 

Two civil actions not covered by immunity are those arising 

out of a contract concluded by a consular officer. And that of a 

consular employee in which he did not contract expressly or 

impliedly as an agent of the sending state, and those by a third 

state party for damage arising from an accident in the receiving 

state caused by a vehicle, vessel or aircraft. 31 

30. Article 41 (1-3) 

31. McClanahan, G.V. Diplomatic Immunity: Principles, Practices, and Problems. (London : C. Hurst & 

Co. Publishers ltd.; 1989) P. 60

259 

In contrast to diplomatic agents, the members of a consular 

post are expected to serve as witnesses in court in some cases. 

They are however not obliged to give evidence or produce 

documents concerning matters connected with the exercise of 

their function. 32 

A consular witness has some significant privileges in that no 

coercive measure or penalty may be applied to him should he 

decline to give evidence. 

This provision could have considerable importance to a 

consul in some developing or highly authoritarian countries. 

The Vienna convention provides for exemption from taxation 

of consular officers, employees and members of their families 

forming part of their households, except in respect of sales and 

purchase tax, estate duties and taxation on private incomes. 

Personal baggage may only be inspected if there is serious reason 

to believe that it contains articles other than those exempt from 

duty. 33 

32. Article 31. 

33. O’Connell, op. Cit. P. 372.

260 

In relation to consular premises, the convention provides 

that local authorities cannot enter the consular premises except 

with the consent of the head of the consular post or of his 

designee, or of the head of the diplomatic mission of the sending 

states… 34 

In case of emergency requiring prompt protective action, the 

consent of head of the consular post may be assumed, another 

departure from the case with diplomatic premises. 

5.3.5 Special Missions 

Members of special missions of high rank and the diplomatic 

staff of the special mission enjoy immunities and privileges to the 

extent provided by the Vienna convention on Diplomatic Relations 

for Diplomatic agents and their families. The technical and 

administrative staff of special missions enjoy the same immunity 

and privileges like those of a Diplomatic mission as prescribed by 

the 1961 Vienna convention. Specifically, the privileges and 

immunities of members of special missions 1969. 

The personal inviolability of members of the special mission 

is interestingly provided for by Article 29 of the 1969 convention 

just like that of the diplomatic agent under the 1961 convention. 

34. Article 31(2)

261 

The premises of the special mission is provided for in Article 

25 of the 1969 convention. In contrast to the case of diplomatic 

agents under the 1961 convention, the 1969 convention provides: 

… The agents of the receiving states may 

not enter the said premises, except with the 

consent of the head of the special mission 

or, if appropriate, of the head of the 

permanent diplomatic mission of the 

sending state accredited to the receiving 

state. Such consent may be assumed in 

case of fire or other disaster that seriously 

endangers public safety, and only in the 

event that it has not been possible to obtain 

the express consent of the head of the 

special mission or, where appropriate, of 

the head of the permanent mission. 35 

In commenting on Article 25 of the Draft Convention 

prepared by it, the ILC stated as follows: 

35. Article 25(1) of the convention on special Missions, 1969. 

The officers of special missions are quite 

established in premises which already enjoy 

the privileges of inviolability. This is so if 

they are in the building occupied by the 

permanent diplomatic mission of the 

sending state. But if the special mission 

occupies premises of its own, they must, of 

course, enjoy inviolability.

262 

The 1969 Convention stipulates that the private 

accommodation of the representatives of the sending state in their 

special mission and members of its diplomatic staff shall enjoy the 

same inviolability and protection as the premises of the special 

mission. 36 

In this regard the 1969 Convention reproduces without any 

change of substance the provisions of Article 30 of the 1961 

convention. 

5.3.6 Heads Of State And Heads Of Government 

Under international law, as exceptional 

perfection attaches a person with the status 

of head of State or head of government. 

Such a person is entitled to special 

protection whenever he is in a foreign state 

and whatever may be the nature of his visitofficial, 

unofficial or private. 37 

A head of state or government who travels abroad is 

protected by customary international law. Problems of protection 

may arise if no prior arrangements had been made for such visit, 

or where the visitor‟s identity is not known. If both of these are in 

place, the protection due to this category of person is at no time in 

doubt. The statement below confirms this further: 


37. Bloomfield and Fitzgerald, Op. Cit. P. 28.

And by the one below: 

263 

States are obliged by international law to 

provide legal protection for this class of 

persons by enacting legislations making 

offences against these persons more 

severely punishable than in the case of 

comparable offences against private 

individuals. 38 

The head of the sending state, when he 

leads a special mission, shall enjoy in the 

receiving state or in a third state the 

facilities, privileges and immunities 

accorded by international law to heads of 

state on an official visit. 39 

The protection outlined above extends to heads of 

government, the minister for foreign affairs and other persons of 

high rank, when they take part in a special mission of the sending 

state. 40 This agrees with Article 50(2) of the ILC Draft. 

It is pertinent to note that the expression “persons of high 

rank” does not refer to persons who, because of the functions they 

perform in a mission, are given by their state a particularly high 

rank. But to persons who hold positions in their home states and 

are temporarily called upon to take part in a delegation to an 

organ or a conference. 

38. Ibid. 

39. Article 21(1) of the convention on special missions, 1969. 

40. Article 21(2).

264 

In Canada, the provision made for the visits of heads of state 

and other dignitaries from abroad includes arrangements on 

behalf of the government of Canada for special protection and 

security guards of honour and ceremony on the occasion of visits 

abroad by the governor-general and other personages representing 

Canada. The protocol division of the Department of External 

Affairs cooperates with Canadian missions abroad in 

arrangements for receiving distinguished visitors. 41 

5.3.7 Representatives To Intergovernmental Organizations 

Existing provisions concerning the personal inviolability of 

representatives of members to the UN are found in the convention 

on the privileges and immunities of the United Nations, 1946, 

Article IV sections 11-16. 

The question of the personal inviolability of representatives 

to other intergovernmental organizations is covered by article v 

sections 13-17 of the convention on the privileges and immunities 

of the specialized Agencies, 1947. 

The 1971 ILC Draft Articles on the representation of states 

in their relations with international organizations a series of 

provisions that greatly extended the concept included in the two 

conventions mentioned above. 

41. Bloomfield and Fitzgerald, loc. Cit.

265 

Article 28 is concerned with the personal inviolability of the 

person of the head of mission and members of the diplomatic staff 

of the mission. 

Article 29 which extend the same protection to the private 

residence of the head of the mission and members of the 

diplomatic staff of the mission and to their papers, 

correspondence, and property as given to diplomatic agents under 

the 1961 convention. Article 54 provides for the inviolability of 

premises of delegations to organs and conferences. Article 60 

provides for the inviolability of private accommodation and 

property. 

The provision of particular interest among others, is Article 

22 (2) which states: 

5.3.8. International Officials 

In effect that the host state is under a 

special duty to take all appropriate steps to 

protect the premises of the mission to an 

international organization against any 

intrusion or damage and to prevent any 

disturbance of the peace of the mission or 

impairment of its dignity. 

International officials are not diplomats, and their 

immunities must be justified on a functional basis. In many 

instances the functionaries will be the nationals of the states

266 

where jurisdiction is in issue, whereas this is rare in the case of 

diplomats. The convention on privileges and immunities of the UN 

does not distinguish between national and non-nationals. 

Only the Secretary-General and the Assistant Secretaries- 

General of the United Nations are assimilated to diplomats for 

immunity purposes. 42 Other officials are only immune with 

respect to acts performed in their official capacity. 43 A similar 

distinction between executive heads and other officials exist in the 

case of Specialized Agencies. 

The Convention on the privileges and immunities of the 

United Nations secures to all officials of the United Nations 

immunity from taxation on their salaries, 44 and this has been 

extended to Specialized Agencies. 

Officials are permitted to travel freely by the convention, and 

to this end several of the conventions provide for degrees of 

immunity from visa and other travel restrictions. The convention 

provides that the United Nations might issue its own laissez- 

passer, which members recognize. 45 The convention also provides 

42. Article V section 19 of the convention on Privileges and Immunities. 

43. Article V section 18 (a) 

44. Article V section 18(a) 

45. Article VII section 24

267 

for immunities for experts on United Nations missions, while 

traveling to and from and actually on the mission. 46 

The purpose of granting immunity to the officials is merely 

to protect them from persecutions. Apart from matters that relate 

to the organization, officials are bound to the rules regulating 

society in the same way as other citizens. 

The convention further exempts officials of the UN all taxes 

on salaries. Provisions close to this are also provided in the first 

schedule of the Diplomatic privileges and Immunities Act, laws of 

the federation of Nigeria, cap 99, 1990. 47 

As Bowett argues, the exemption from taxation is not 

designed to create a privileged class. But simply to secure equality 

of salary treatment to officials regardless of nationality, and to 

avoid the payment of individual member states large sums by way 

of taxation on their nationals from funds contributed by the 

totality of the members for the general purpose of the 

organization. 48 

46. Article VI sections 22 and 23. 

47. Section 11 (2)(a) of the Nigeria Act , cap. 99, 1990. 

48. Bowett, D.M. The law of International Institutions (London : Stevens & Sons Ltd.; 1975) p. 

309.

268 

However, officials of international organizations are not 

exempted from charges payable in return for specific services 

rendered to them. 

In the case of Leevwen Vs. City of Rotterdam which was 

decided at the European court of Appeal at The Hague 49. The bone 

of contention was the Immunity from income tax enjoyable by 

officials of the EEC. The importance of this case is the principle 

which it lays down and which can be applied to the officials of any 

other international organization. The plaintiff went to court 

challenging the Dutch Authorities umpiring a fee of 120 florins on 

him. He argued that Article 12 of the protocol on the privileges 

and immunities of the EEC exempted officials of the community 

from paying income tax on their salaries, and that therefore no 

account should be taken of his official salary. 

The court held that a distinction must be made in 

community law as in national law between taxes, which were 

levied to meet the general needs of the authorities and charges, 

which were payable in return for specific services. It pointed out 

that Article 3 of the protocol exempted the community from all 

49 Ibid.

269 

detect taxes but not taxes or charges which simply represented 

payment for public utility services. 50 

In relation to international forces, states who accept their 

presence as a matter of obligation grant privileges and 

immunities. International forces are however enjoined to respect 

the local laws of the state. They also enjoy total immunity from 

criminal jurisdiction in respect of official acts. Official acts fall 

exclusively to the determination of commander of the force. The 

force may also enjoy exemption from taxation and custom duties. 

There is also freedom of communication, use of uniform, use of 

flags and other official markings and identification. 

Article 19 of the ICJ Statutes and the 1946 agreement 

between the Court and the Netherlands grants judges and officials 

of the Court diplomatic privileges and immunities in the exercise 

of their functions and outside their own country. The General 

Assembly also in resolution 901 of 1946 extended these 

immunities to counsels and advocates appearing before the court. 

50. Reueil de la Jurisprudence, 14(1968) p. 63.

270 

5.4 OTHER PERSONS BENEFITING FROM PRIVILEGES AND 

IMMUNITIES 

Diplomatic agents, that is to say the head of mission and 

others of diplomatic rank, have traditionally been granted a degree 

of immunity which covers both their professional activities and 

their private acts as individuals – in short, the totality of their 

existence whilst in the receiving state 51. This „ global‟ principle is 

maintained in the Vienna Convention. This provides that 

diplomatic agents, with the exception of those who are nationals 

of, or permanently resident in the receiving state shall receive the 

full array of privileges and immunities listed in Articles 29 to 36 

relating to personal inviolability, immunity from jurisdiction and 

fiscal and parafiscal immunities. The question arises as to 

whether, and if so to what extent, the same benefits should be 

given to the remaining categories of staff and to other persons 

connected with the mission. The Vienna Conference, like the 

International Law Commission before it experienced considerable 

difficulty over this issue on which, indeed, more time was spent 

than on any other provision of the Convention, before a final 

solution was achieved. 

51 This qualification extends to all persons who are nationals of, or permanently resident in, the receiving state.

271 

5.4.1 Non-Diplomatic Members Of The Staff 

The International Law Commission declared, beyond the 

undisputed rule. That diplomatic members of a mission receive 

the same privileges and immunities as the head of mission, there 

is – or was - no uniformity in the practice of States in deciding 

which members of the staff of a mission should enjoy privileges 

and immunities 52. Some states give privileges and immunities on a 

liberal basis to members of the administrative staff, and a few 

even to members of the service staff, while other States grant none 

at all. In the absence of any fixed law, the preparation of the 

Convention required a choice to be made. This was between 

evaluating the task performed by the subordinate categories of 

staff as part of the overall operation of the mission, and deciding 

to what extent privilege and immunities should be accorded on a 

basis of the function of the particular individual, or group of 

individuals, concerned. This choice broadly coincides with that 

between the different forms, which any regulation of the matter 

might take. That is between a general and uniform rule, founded 

on what was considered necessary and reasonable from the stand- 

point of the mission as a whole, and the adoption of minimum 

52 Yearbook of the International Law Commission, 1958, vol. 11, p. 101.

272 

provisions, permitting States to make such additional 

arrangements as they might wish. The solution adopted was 

largely in accordance with the former approach, whereby the 

accent was placed on the notion of mission as an entity, requiring 

some privileges and immunities for each of its component parts, 

rather than on a scrupulous application of the test of functional 

necessity in individual instances: 

(a) Administrative and technical staff 

In the case of administrative and technical staff, there were 

two counter- tendencies. It was argued, firstly, that persons in 

this category were in as much need of complete protection as 

diplomatic agents. And should therefore be assimilated to the 

position of diplomatic agents: they perform important tasks and 

frequently had access to confidential materials - indeed, a cipher 

clerk might well have possession of more valuable information 

than a low ranking diplomat. Furthermore, especially in small 

missions, it would be very hard to distinguish, according to 

function, the work of someone of diplomatic rank and that of a 

member of the administrative and technical staff. As against this 

it was contended that these considerations, whilst they might be 

relevant in the case of some administrative and technical staff

273 

members, did not apply to all. The number of people involved 

might be large, perhaps over 5,000 in many capitals, and the 

persons in the lower categories were, it was said, more prone to 

abuse their privileges than those of diplomatic rank. 

The debate at the Vienna Conference, following long 

discussions in the Committee of the whole and in plenary session, 

finally centred on the extent of the jurisdiction immunity to be 

accorded to members of the administrative and technical staff. 

The danger that the Conference would adjourn without agreement 

on this issue was averted by acceptance of a compromise 

proposal 53 whereby it was agreed that staff members in this 

category should enjoy privileges and immunities specified in 

Articles 29 to 35: 

except that the immunity from civil and 

administrative jurisdiction of the receiving 

State specified in paragraph 1 of Article 31 

shall not extend to acts performed outside 

the course of their duties 54 

In addition, the case of the customs privileges listed in 

Article 36 accords these staff members exemption only in respect 

of articles imported at the time of first installation; they do not 

53 A/CONF.20/ L.21 and Add. 2, based on a United Kingdom amendment A/CONF.20/l.20 

54 Article 37, paragraph 2.

274 

therefore enjoy any privileged with respect to goods imported 

subsequently, nor is their personal baggage exempt from 

inspection. 

(b) Service Staff 

The position of service staff is easier to settle. 

In the case of administrative and technical staff the problem 

turned on the extent to which they were to be assimilated to 

diplomatic agents. That issue could not be raised at all with 

respect to service staff: for them the matter to be determined was 

which immunities were to be specifically granted. Article 37(3) 

provides that service staff are to be accorded immunity „in respect 

of acts performed in the course of their duties‟, thus leaving them 

subject, except to that extent, to criminal as well as to civil 

jurisdiction, to measures of execution and to the obligation to give 

evidence. They also obtain „exemption, subject to the conditions 

laid down in Article 33, from the social security provisions in force 

in the receiving State. 

5.4.2 Persons Connected With Members Of The Staff 

(a) Family members 

The only family members who, by virtue of their relationship, 

may claim privileges and immunities are those connected with

275 

individual members of the first two categories of staff, namely 

diplomatic agents and administrative and technical personnel. As 

regards members of the family of a diplomatic agent, there was 

relatively little disagreement that, in accordance with standard 

practice, such persons should receive the same privileges and 

immunities as are accorded to diplomatic agents themselves 55. 

Except when the family members are nationals of the receiving 

state, they therefore enjoy the benefits in Article 29 to 36. 

The variations in municipal law regarding such matters as 

the age when children reach maturity and the difficulty in 

applying the test of economy dependence in all instances 

prevented the adoption of any precise definition of „members of the 

family of a diplomatic agent‟. Other than by the qualification that 

the persons concerned must form part of the diplomat‟s 

household. The International Law Commission stressed, however, 

that „close ties‟ or special circumstances 56 are necessary 

prerequisite for family relatives wishing to claim privileges and 

immunities. Under Article 10 of the Convention, the Ministry of 

Foreign Affairs of the receiving State must be notified of the 

composition of the family and of any chances in it. Although such 

notification is not conclusive as to the status of the persons 

55 Article 37, paragraph 1.

276 

concerned, it has an obvious practical utility in enabling the 

sending State to specify the family members for whom privileges 

and immunities are sought and in providing the receiving State 

with an opportunity to query and borderline cases. 

Members of the family who form part of the household of a 

member of the administrative and technical staff receive the same 

privileges and immunities as the latter, unless they are 

themselves nationals of, or permanently resident in, the receiving 

State 57. Since administrative jurisdiction only as regards acts 

performed in the course of their duties, members of their families 

are accorded no immunity in respect of civil and administrative 

jurisdiction. Notification must be given to the ministry of foreign 

affairs of persons claimed as family members. 

(b) Private servants 

Persons in domestic service of members of the mission are 

granted exemption from taxation on the emoluments they receive 

by virtue of their employment but are accorded other privileges 

and immunities „only to the extent admitted by the receiving 

state‟ 58. That state is required, however, to exercise its jurisdiction 

so as not to interfere unduly with the performance of the functions 

56 

Yearbook of the International Law Commission, 1958, vol. 11, p. 102. 

57 

Article 37 , Paragraph 2. 

58 

Article 37 paragraph 4.

277 

of the mission‟ 59. In accordance with this provision the receiving 

state would not be entitled to act in such a way as virtually to 

deprive the staff of a mission of the services of the persons 

concerned, and should, where possible, notify missions of steps 

taken, or proposed to be taken, against individual employees 

which may interrupt their employment. 

The private servants of diplomatic agents may be exempt 

from the social security provisions in force in the receiving state 60. 

5.4.3 Nationals Of, Or Those Permanently Resident In, The 

Receiving State 

(a) Diplomatic agents 

The appointment as diplomatic agents of persons having the 

nationality of the receiving State was strongly opposed during the 

preparation of the Convention and finally admitted only on the 

condition that such appointments should be subject to the 

consent of the receiving state, which may be withdrawn at any 

time 61. The question of the extent to which such persons, or those 

permanently resident in the receiving State, were to be granted 

privileges and immunities caused a similar battle to be fought, 

with some fresh complications. In the absence of any clearly 

59 An adaptation of Article 23 of the Harvard Draft Convention. Harvard Law School, Research in 

International Law, I. Diplomatic privileges and Immunities (1932), p. 118. 

60 Article 33, paragraph 2. 

61 Article 8 paragraph 2.

278 

established rule on the appointment, it should not be obliged to 

concede any privileges and immunities to the persons in question. 

The commoner view, which eventually prevailed, was that, 

although the receiving State was not bound to consent to the 

appointment of one of its nationals, if it did so it should accord at 

least the privileges and immunities which have essential for the 

execution of official functions. As several representatives stressed, 

jurisdiction could not in any case be exercised over such agents 

with respect to acts performed in the course of duty without 

infringing the sovereign rights of the sending state itself. Article 38 

provides that, except where the receiving state agrees to accord 

additional privileges and immunities, a diplomatic agent who is a 

national or permanent resident of that State: 

Shall enjoy only immunity from 

jurisdiction, and inviolability, in respect of 

official acts performed in the exercise of his 

functions. 

The Article represents an unsatisfactory compromise, in 

which weight is given to discouraging the appointment of persons 

other than nationals of the sending State, rather than to the 

provision of an adequate framework in which non-national 

diplomatic agents may perform their functions. The fact that the 

receiving State, in circumstances where it agrees to the

279 

appointment, may agree also to the grant of privileges and 

immunities on a more regular scale, together with the relatively 

small number of people involved, prevents the problem from being 

one of any serious dimensions. 

(b) Other members of the staff and private servant: 

In the words of Article 38, paragraph 2: 

Other members of the staff of the mission 

and private servant who are nationals of or 

permanently resident in the receiving state 

shall enjoy privileges and immunities only 

to the extent admitted by the receiving 

state‟. 

Having regard to the frequency with which the subordinate 

grades of mission staff such as chauffeurs, janitors, clerks and 

interpreters are locally recruited and the dependence of the 

mission on their services, the sending state may well try to reach 

agreement with the receiving state that these grades should be 

treated similarly to their foreign colleagues. 

(c) Family members 

Members of the family of a diplomatic agent are not granted 

privileges and immunities under the Convention if they are 

nationals of the receiving State, nor, in the case of members of the 

family of administrative and technical staff members, if they are 

either nationals of, or permanently resident in, the receiving state.

280 

5.5 EXCEPTIONS FROM IMMUNITY FROM CIVIL AND 

ADMINISTRATIVE JURISDICTION 

(a) Exceptions ratione materiae 

The Vienna Conference agreed to accept three exceptions to 

the principle of immunity from civil and administrative 

jurisdiction: 62 

(i) Real property: in accordance with the claim of all states in 

exclusive jurisdiction over immovable property, „the very 

substratum of national territory‟, as the International Law 

Commission called it 63. The jurisdictional immunity of 

diplomatic agents does not extend to real actions concerning 

immovable property situated in the territory of the receiving 

State and which is held in a private capacity and not on 

behalf of the sending State for the purposes of the mission. 

In countries where, because of local legislation, it is 

necessary that this be vested in the ambassador himself, the 

essential requirement is that the property should be used by 

the mission 64. In the event that the private property owned is 

also the residence of the agent, no measures of execution 

62 Article 31, paragraph 1(a), (b) and (c). 

63 yearbook of the International Law Commission, 1957, vol. 11, p. 139. 

64 Yearbook of the International Law Commission, 1957, vol 1, p.96.

281 

may be taken which infringes the inviolability 65. Thus, 

supposing there is a dispute as to title, the diplomat will not 

be able to dispute jurisdiction so as to prevent the count 

from giving judgement, although the possibility will be open 

to him at least in theory, to deny possession to the legal 

owner 66. 

(ii) Succession: 

As every lawyer knows, actions relating to succession are 

frequently complex and involve the collaboration of a large 

number of parties. They also form a standard example of the type 

of case for which resort to the courts of the sending State will 

scarcely ever provide a practical solution. There is therefore much 

good sense, as well as probably new law in the second exception 

which declares that a diplomatic agent does not enjoy immunity 

from actions relating to succession in which he is involved as a 

private person, whether as an executor, administrator, heir or 

legatee. 

(iii) Professional and commercial activities: 

In principle a diplomatic agent, or other member of a 

mission, is employed for that purpose and no other. To safeguard 

65 Article 31, paragraph 3. 

66 Article 41 paragraph 1.

282 

this rule, the Vienna Convention provides expressly that no 

diplomatic agent may act in a professional or commercial capacity 

for personal profit outside his official functions. It comes therefore 

as somewhat of a surprise to find that the third exception to the 

principle of immunity from civil jurisdiction concerns actions 

„relating to any profession or commercial activity performed by the 

diplomatic agent in the receiving State outside his official 

functions. The explanation is twofold: firstly, the prohibition of 

professional and commercial activities extends only to diplomats 

and not to other members of mission staff or their respective 

families; whereas non- diplomatic members of mission staff (and 

their families) enjoy no immunity from civil jurisdiction in respect 

of such activities, the members of the family of a diplomat would 

have complete exemption in respect of their professional or 

commercial activities if this limitation were not included. 

Secondly, the prohibition of non diplomatic activities may possibly 

be set aside by the receiving state in the light of the particular 

circumstances, as where, for example, the diplomat ha some 

special skill or the activity is of a limited duration. In that event 

the diplomat enjoys no special exemption as regards any contract 

he enters into or any acts of malfeasance which he may commit.

(b) Initiating of proceedings 

283 

Diplomatic agents and other persons who benefit from 

jurisdictional immunity with respect to civil actions receive that 

immunity, as they receive others, in order that they may not be 

impeded in the free execution of their duties. That reasoning does 

not extend to denying them access to the courts of the receiving 

state (normally, it may be presumed, with the consent of the 

sending state) to initiate an action; in such proceedings they have 

the same locus standi as any other foreigner within the 

jurisdiction. Resort to court action is not therefore but as the 

exercise of an entitlement which is open to them, as it is to others, 

in their potential capacity as individual plaintiffs. Jurisdiction 

immunity does, or might come into play, however, in the event 

that the defendant presents a counter claim. To guard against the 

unjust position which would result if, though a diplomat might 

bring a suit, he could plead immunity in order to rebut any 

counter claim, the Vienna Convention provides expressly that, 

where a person benefiting from jurisdictional immunity initiates 

proceedings, such action precludes him from invoking that 

immunity in respect of any counter claim directly connected with 

the principal claim. The acceptance of the jurisdiction of the

284 

receiving state is deemed to have been made as fully as may be 

required to settle the dispute in all stages closely linked to the 

basic claim, and thus includes such related matters as the 

production of documents and the giving of evidence, in so far as 

these may be necessary for the determination of the case. 

Technically, however, the resort by the diplomat to the courts of 

the receiving state only to acceptance of jurisdiction per se; he 

remains immune even in these circumstances, for measures of 

execution, for which an express waiver is required from the 

Government of the sending state. It may be presumed that such a 

waiver will normally be made if the diplomat does not voluntarily 

settle any judgement given against him. 

5.6 RECOGNITION AND INTERNATIONAL PROTECTION 

Recognition is the free act by which one or more states 

acknowledge the existence on a definite territory of a human 

society politically organized, independent of any other existing 

state and capable of observing the obligations of international law, 

and by which they manifest therefore their intention to consider it 

a member of the international community.

285 

Tunkin 67 defines it as an act that expresses the intention of 

the recognizing government to enter into stable international legal 

relations with the party being recognized. 

Implicit in the above definitions is that recognition in 

whatever form, involves a formal acknowledgement of an entity 

which fulfils all the attributes of statehood. It carries along with it 

rights and duties both on the recognizing and recognized state. 

On the recognized state, the act equips her with the credence to 

enter into international relations with the recognizing states. On 

the other hand, the act places on the recognized state the duty of 

observing the international obligations. 

The international community is always in a flux. If there is 

any permanence therein, it is the permanence of change. 

Communities emerge from the parent states either at attainment 

of independence or by breaking away in the exercise of the right of 

self- determination or for some other reasons. Government equally 

spring up either as successors to the existing ones or in direct 

opposition asserting their independence and seeking for 

recognition. Some are recognized others are not for reasons 

objective and subjective. 

67 Tunkin, G.I Theory of International Law (London : Gorege Allen & Uwin. Ltd. ; 1972) P.111

286 

It is the intention of this chapter to examine critically the 

issue of recognition of states and government in international law. 

This will also incorporate forms of recognition, conditions for 

according recognition and problems and effects of recognition. 

Recognition is the free act by which one or more states 

acknowledge the existence on a definite territory of a human 

society, politically organized, independent of any other existing 

state and capable of observing the obligations of international law. 

And by which they manifest therefore their intention to consider it 

a member of the international community 68. 

Tunkin defines it as, an act that expresses the intention of 

the recognizing government to enter into stable international 

relations with the party being recognized. 69 On the recognized 

state, it equips her with credence to enter into international 

relations with the recognizing states the duty to observe 

international obligations. 

It cannot however be inferred that unrecognized states and 

governments cannot exist. It engages in international relations 

and establishes contact with non- recognizing states so far as its 

68 Starke, JG. Introduction to International Law ( London: Butterworths. 1977) p. 127. 

69 Tunkin. G.I International Law ( Moscow: progress Publishers: 1986) p. 122.

287 

situation permits. It represents a factor in international life with 

the same aspirations as fully recognized states or governments. It 

is bound to observe universally recognized rules of international 

law just as recognized states. 

However the act of recognition clothes the state recognized 

with certain advantages which are denied unrecognized state or 

governments. These include the right to espouse claims of her 

nationals for injuries, the right to full diplomatic privileges and 

immunities to her accredited representatives. 

International Law does not seem to make it mandatory for 

state to recognize an emerging entity or government. It appears 

rather that the grant of recognition is a discretionary act subject 

to the whims and caprices of the recognizing state. In most cases 

it is a political act granted by states for reasons of national 

interest and policy considerations. It lacks stereo typed criteria, 

though certain basic requirement may be desired. States 

frequently refuse, delay or eventually accord recognition to newly 

emerged states or governments for reasons that lack strict legal 

justification. For example, in the First World War, Great Britain, 

France, the United States, and other powers recognized Poland

288 

and Czechoslovakia before these later existed as states or 

government. 

5.6.1 Theories of Recognition 

Basically, there are two theories on the issue of recognition. 

These are the constitutive and the declaratory theories. 

5.6.2 The constitutive Theory 

According to the constitutive theory, an entity becomes a 

state only if it has been recognized by other states, which have 

themselves been recognized. It maintains that a personality in 

international law is created through a legal act recognition, which 

introduces into relations between a recognized and recognizing 

state the elements of rights and obligations. 70 This theory seeks to 

reason that only the act of recognition confers international 

personality on a state. The consequence of this position is that the 

new collective entity or revolutionary regime, which has not been 

accorded recognition, would not only be excluded from normal 

intercourse with subjects of international law, but also remain an 

entity outside international plane. 

The constitutive theory appears not to take due notice of the 

phenomenon of unrecognized but effectively established states 

and governments. Again, it does not account for the distinction 

between firmly established unrecognized entities and newly 

70 Nwachukwu, C.N The Status of Unrecognized states and Governments in international law. P 44.

289 

emerged regimes that are yet to find their feet in the scheme of 

things. Also, this theory if rigidly followed, will practically deny the 

emergence of a state as an international personality. This is 

because all members of state community do not grant recognition 

at the same time so as to make an entity at once an international 

person. However this theory would tend to negate the retroactive 

effect of recognition which validates acts performed by the 

hitherto unrecognized entity, as in its view, the existence of a 

state as a subject of international law, starts from the moment of 

recognition. 

5.6.3 Declaratory Theory 

This theory recognizes that a state as an international 

personality pre-exists. The effect of recognition is to establish legal 

rules and relations between the two parties concerned. It 

maintains that a state may exist without being recognized, and if 

it does exist in fact, then, whether or not it has been recognized 

by other states, it has aright to be treated as a state by them 71. 

The declaratory theory also holds the view that, a new state or 

government irrespective of recognition, become a full member of 

the international community and consequently a subject of 

international law when the qualifications of statehood or 

71 Brieriy. J.L Law of Nations ( London: clareson Press: 1963) p. 139.

290 

governmental power as formulated by international law have been 

met. Consequently, the primary function of recognition is a formal 

acknowledgement of an existing state of law and fact 72. Perhaps 

the possible fault of this theory is that, it may tend to encourage 

insurance and revolutionary movements. 

5.6.4 Conditions for Recognition 

Though international Law has set down conditions for an 

entity or a government to fulfil before it could be accorded 

recognition, states practice appears to show that recognition is 

motivated more by political than legal considerations. Thus in 

1903, the United States recognized Panama barely three days 

after it had revolted from Columbia. Also in 1948 the United 

States accorded recognition to state of Israel within a few hours of 

its proclamation of its independence 73. The act is a matter of 

policy of the recognizing state and therefore falls short of any 

stereo type rule. However, it does appear that an entity should 

pass all the attributes of statehood in other to be accorded 

recognition. These according to the Montevideo Convention on the 

Rights and Duties of states, 1933 include: 

72 Brownlie, I Principles of Public International Law ( Oxford, Oxford University Press 1979) p89. 

73 Brownlie J.L op cit p 140.

a) A permanent population 

b) A define territory 

291 

c) A government as a central authority 

d) Capacity to enter into relations with other states. 74 

As to recognition of governments, it is normally inferred that 

when a new state is recognized, the gesture is concurrently 

extended to its government. Situations may however arise when 

the government of a state is not necessarily recognized wholly with 

the existence of the state. Ordinarily, what form of government a 

state should adopt and whether it should replace an existing 

government by a new one are essentially domestic matters, which 

do not concern other states. But they may be concerned to know 

whether the person or persons with whom they propose to enter 

into relations are in fact a government whose acts may be binding 

at international law upon the state, which they profess to 

represent. 

Accordingly, states tend to require that a government 

wishing to be recognized should have effective control of the 

territory and the population within the territory. In fact, it should 

be independent of the control of any other state or government. It 

must have the willingness to fulfill international obligations. When 

74 Supra P 13

292 

a new entity is established as a result of a revolt or civil war, there 

are always two possible views on whether the government that has 

been set up can be regarded as the government of the new state. 

Another question relates to whether the parent state has lost its 

control over the state territory. This is especially so when the 

parent state is endeavouring to regain part of the territory it had 

lost. 

In each therefore, the state which has been approached for 

recognition of the new entity has to determine for itself according 

to its own view whether the entity has a government, which is 

independent of the control of any other state. A state and its 

government can be regarded as independent irrespective of the 

attitudes of the mother country. In a case where the parent state 

disputes the status of the new state as a sovereign entity, clear 

evidence is required to show that the mother country has actually 

been displaced and that the effectiveness of the new state 

authority is not a mere assertion of right. Once such evidence is 

available, the manner by which the new state came into existence 

is immaterial. 75 

75 Sen, B. A Diplomat’s Hand Book On International Law and Practice 2 nd ed. (1979) p. 411

293 

In Iraq following the revolution of 1958, which culminated in 

the assassination of the monarch, the form of government was 

changed from Monarchy to a republic and a group of proclaimed 

itself as the Republican Government of Iraq. In this case the 

situation became clear within a few days of revolutionary outbreak 

that their old government has been effectively ousted. Other states 

were therefore in no doubt as to which authority was to be 

regarded as the lawful government of Iraq. 

It may also be necessary to make certain that the situation 

has attained a certain degree of permanence so that it can 

reasonably be assumed that the new state of affairs has come to 

stay. 

Apart from the above requirements states at times go too far 

in applying some other criteria before recognition. In the past, 

some states considered the degree of civilization of the new state, 

the legitimacy of its origin, its religion, and even its political 

system as conditions for recognition. Modern trends however do 

not seem to uphold these conditions. For one thing the former 

idea of categorizing humanity into civilized, barbarous and savage 

people can hardly be applicable now. The days have long past

294 

when only European nations and states populated by people of 

European origin were considered as the only civilized species. 

On the question of legitimacy of origin, it may be that 

absolutist governments to garner support it held sway in the 19th 

century to discredit revolutionary government modern 

International Law has rendered it out of realities clung to this 

principle. 

If considerations of legitimacy of origin were brought in on 

the question of recognition many states or governments, which 

came into being in violation of the constitutional means, such as 

revolts civil war or coup d‟etat would have gone unrecognized. 76 

State religion can safely be said to be an irreverent consideration, 

as secularism within some states appears to be the order of the 

day. On the question of the political system of the state seeking 

recognition states often insist on free election so as to obtain a 

sufficient guarantee for the representative nature of such a 

government. Perhaps this may have formed the basis upon which 

the United States government until 1979 did not accord 

recognition to the Communist China. The argument of the United 

States then was that, the Communist regime in China lacked 

76 Sen B op cit p 413.

295 

positive support of the populace. For a long time the same 

argument was held by many other states that withheld recognition 

in respect of the government of North Korea and North Vietnam. 

The requirement of democratic legality does not however 

command general acceptance as it touches on political and 

ideological issues. Again evidence of governments that emerged 

through coups and revolutionary means in some Latin America 

and African states and are yet accorded recognition tend to negate 

the very essence of this requirement. Besides, it should be borne 

in mind that every community has the right to choose its own 

government. 

5.6.5 Methods of according recognition 

Recognition as a public act of state is an optional political 

act. There is no legal duty in this regard. It is discretionary and in 

no way a determinant of diplomatic relations. On the other hand 

absence of diplomatic relations is not in itself non- recognition of 

the state. It will be recalled that several states like, Tanzania, 

Gabon, Ivory Coast, Zambia and Haiti recognized the then Biafra 

but no diplomatic relations were entered into between them and 

Biafra. 77 

77 Harris D.J Cases and materials on international law (London: sweet & Maxwell. 1979) p89

296 

There is no uniform method of according recognition. It can 

be express or implied from the conduct of other states in their 

dealing with the new state. Express recognition takes the form of a 

formal declaration whereby government accords recognition to a 

new entity, that has emerged as a state or an authority which has 

formed itself into a government by fulfilling the necessary 

conditions. In the words of Brownlie, recognition may take the 

form of an agreement or declaration of intent to establish 

diplomatic relations or a congratulatory message on attainment of 

independence. 78 

On implied recognition, Lauterpatch as quoted by Brownlie 

maintains that only the conclusion of a bilateral treaty, which 

regulates comprehensively the relations between the two states, 

the formal initiation of diplomatic relations and probably the issue 

of consular exequateurs justify implication 79. 

Harris adds here that the crucial question is that of 

intention. He intoned that participation in an international 

conference with a state or government will not indicate recognition 

if it is made clear that it is not intended to have this effect. Thus 

in 1954, when the Foreign Ministers of France, United Kingdom, 

78 Brownlie, Op. Cit., p 91. 

79 Ibid., p. 96

297 

United States, and the then USSR proposed the Geneva 

Conference to discuss Korea and Indo-China, and invited the 

government of the Republic of China and the two Koreas and 

other interested states they added. 

It is understood that neither the invitation to nor the holding 

of the above mentioned conference shall be deemed to imply 

diplomatic recognition in any case where it has not already 

accorded. 

Tunkin sums it up by stating that, the admission of a state 

to an international organization does not imply its recognition by 

those member nations that have not recognized it. 80 

The same position applies to unrecognized governments. 

This is more so when charters of these organizations do not 

require that its member states recognize another state as a 

condition for admitting it into the organization. Such state 

therefore indicating that such an entity is capable of entering into 

international relations. 

80 Tunkin G.I Op. Cit. p. 166

298 

Recognition can equally be accorded on a collective form. 

This may take the form of a joint declaration by a group of states. 

In this regard, the states of Bulgaria, Montenegro, Serbia and 

Rumania were recognized at the Berlin Congress of 1878 and 

Estonia and Albania by Allied Powers in 1921. 

Similarly, there is a duty to states parties to a system of 

collective security or other multilateral conventions not to 

recognize a state whose acts run counter to their ideals. 

Thus the Security Council resolution of 1965–6 

characterized the Smith regime of the then Rhodesia as unlawful 

in terms of the Charter of the United Nations and called upon all 

member states not to recognize the illegal regime. 81 

Here, Rhodesia may have satisfied all the normal criteria for 

statehood but particular matters of law and fact provide a basis 

for duty of non-recognition. 

Recognition can also be granted by bargains. For example in 

1920 Poland indicated its preparedness to recognize Latvia 

provided that the latter offered a 99-year lease of a port to be 

declared a free port. 

81 Brownlie I. Op. Cit. p 98.

299 

Similarly, in 1922 the United States insisted on oil 

concession as a condition for according recognition to Albania. 

The recognition at the Berlin Conference of 1878 of Bulgaria, 

Montenegro, Serbia and Rumania under the condition only that 

these states should not impose any religious disabilities on any of 

their subjects fall into the bargain type. Bargains of this type, if 

allowed to continue will greatly undermine the rule of law in the 

international community. 

5.6.6 Forms of Recognition: De Facto Recognition 

Writing on recognition de facto, Brownlie reasoned that on 

the international plane, the statement that a government is 

recognized de facto might involve a purely political judgment 

involving either a reluctant or cautious acceptance of an effective 

government. 82 Starke maintains that it represents in the mind of 

the recognizing state, provisionally and temporarily and all due 

reservation for the future, the state or government recognized fulfil 

the attributes of statehood and government in fact. 83 

This falls into exceptional moments when a state or 

government comes into existence by extra constitutional means. 

In such a case, de facto recognition is a premature recognition. 

82 Ibid p. 94 

83 Starke J.G. Introduction to International law ( London Butterworth, 1977) p 137.

5.6.7 De Jure Recognition 

300 

Recognition de jure on the other hand means that according 

to the recognizing state, the state or government so recognized has 

fulfilled all the requirements laid down by international law to 

enter into relations with other nations. Such requirement includes 

a reasonable assurance of stability and permanence, evidence of 

proof that the government commands the general support of the 

population, a proof of its ability and willingness to fulfill its 

international obligations. 

5.6.8 Legal consequences of recognition 

Recognition produces legal consequences affecting the 

rights, powers and privileges of the recognized state or government 

both at the international law and municipal law of states that 

have given the recognition. Recognition is more than an informal 

act. It also possesses an important political significance and major 

legal consequences. It declares the fact of appearance of a new 

state or government and helps to stabilize its international

301 

position and exercise of the basic rights that the state or 

government as the case may be possess. 

Under international law, recognition enables a state or 

government to: 

1) Acquire capacity to enter into diplomatic relations with other 

states. 

2) It enables it become a member of the international 

community. 

3) Under municipal law it entails that the state or 

government so recognized: 

a. Can sue and be sued in the municipal courts of the 

recognizing state. 

b. Claim immunity from suits both for itself and 

representatives. 

c. In case of a government, claim possession of property 

situated in the territory of the recognizing state that 

belonged to the former government. 

5.6.9 Problems 0f Recognition 

Problems may sometimes arise as to when recognition 

should be granted to a state or government. When an entity 

regains independence from her former colonial master or when a

302 

change in government is effected constitutionally, the problems of 

recognition may be minimal if any at all. However, if a state 

breaks away from a parent state either by civil war, secession or 

revolt, or where a new government is effected constitutionally the 

problems of recognition may be minimal if any at all. However, if a 

state breaks away from a parent state either by civil war, 

secession or revolt, or where a new government struggles with an 

existing one over supremacy of authority the problem of 

recognition becomes acute. The problems become pronounced if 

the present government intends to exercise its authority over the 

territory of the new state and describes its government as “rebels.” 

Since premature recognition of a government could amount to 

interference into internal affairs of the Parent State and hence 

rapture relations, other states and their government tend to act 

with caution in granting recognition. 

On the other hand, refusal to grant recognition on the 

grounds that the parent state has not accorded recognition will 

amount to a denial of the right to self–determination for the 

purpose of perpetuating domination over a people. There have 

equally been numerous cases in the past when states have been 

faced with the problem of recognition of a new government of

303 

existing states. For example in the situation that followed the 

French Revolution, there was uncertainty for a long time as to the 

proper authority that could be regarded as the lawful government 

of the country. Consequently each state had to decide for itself the 

government that it would recognize for the purpose of 

international relations. The Russian Revolution of 1917, the 

Spanish Revolution of 1936- 39 and the Mexican Revolution of 

1915 created similar problems. It took a long time for the then 

Soviet Government to be recognized. German and Italy until did 

not recognize save the government of General Franco in Spain 

after the end of the civil war. The government of General Carranza 

in Mexico was recognized only after his authority had been 

conclusively established. 

Perhaps to overcome the problem caused by these incidents 

and purely for the purpose of maintenance neutrality states 

initially accord de facto recognition to these entities. When they 

are convinced that all the attributes of statehood have been 

displayed the question of de jure recognition then comes into play. 

It cannot however be inferred that unrecognized states and 

Government do not and cannot exist. Rather it should be borne in 

mind that an recognized state or regime is a political entity

304 

irrespective of lack of recognition. It is not a dormant organism. It 

engages in international relations and establishes contact with 

non-recognizing states so far as its situation permits. It represents 

a factor in international life with the same aspirations as a fully 

recognized state or government. It is bound to observe universally 

recognized rules of international law just as recognized states. 

However, the act of recognition clothes a state with certain 

advantages, which are denied an unrecognized state or 

government. These include the right to espouse the claims of her 

nations for injuries by a recognizing state, the right to full 

diplomatic privileges and immunities by her accredited 

representatives. Once the representatives are accredited, they must 

enjoy privileges and immunities. 

International law does not seem to make it mandatory for 

states to recognize an emerging entity or government. It appears 

rather that the grant of recognition is a discretional act subject to 

the whims and caprices of the recognizing state. In most cases, it 

is a political act granted by states for reasons of national interests 

and policy considerations. 

It lacks a stereotyped criterion though certain basic 

requirements may be desired. States frequently delay, refuse or

305 

eventually accord recognition to newly formed states or 

governments for reasons that lack strict legal justification. For 

example, in the First World War, Great Britain, France, the U.S.A. 

and other powers recognized Poland and Czechoslovakia before 

these later actually existed as independent states or governments. 

The issue of recognition is central to the granting of 

protection by states. Ordinarily no state can grant protection to a 

person it has refused to recognize. International law provides: 

The establishment of diplomatic relations 

between states and of permanent 

diplomatic missions takes place by mutual 

consent 84. 

The above provision connotes that consent is required if 

diplomatic relations or permanent diplomatic mission is to take 

place. Though not expressly stated, all forms of diplomatic 

relationships must be accepted and recognized by the states 

involved, and this indeed is a basis for granting protection to the 

agents of states playing these roles on behalf of their states. 

There is another provision: 

84. Article 2 of the Vienna Convention on Diplomatic Relations, 1961. 

85. Article 9 

…A person may be declared persona non 

grata or not acceptable before arriving in 

the territory of the receiving state. 85

306 

The provision confirms that a state may reject a member of a 

diplomatic mission to its territory before the agent arrives in the 

territory of the rejecting state. Where this happens, the rejection of 

such a person connotes the refusal to accord recognition to such 

agent, and consequently no protection can be granted. 

In the same vein: 

A state may send a special mission to 

another state with the consent of the latter, 

previously obtained through the diplomatic 

or another agreed or mutually acceptable 

channel. 86 

From the above, where such consent is not given protection 

cannot be given to a state agent who travels incognito. The 

absence of consent connotes the absence of recognition of such 

mission. 

And yet another: 

86. Article 2 of the convention on special missions, 1969. 

87. Article 8. 

...the sending state may freely appoint the 

members of the special mission after having 

given to the receiving state all necessary 

information concerning the size and 

composition of the special mission, and in 

particular the names of and designations of 

the persons it intends to appoint…(The 

receiving state) it may also, without giving 

reasons decline to accept any person as a 

member of the special mission. 87

307 

The above further affirms the consent of the receiving state 

in terms of the persons representing a state in its own territory. 

The receiving state can chose not to recognize or accept any 

member of the mission, and is not bound to give any reasons. 

Where this recognition is absent, the state is not bound to grant 

protection. 

5.7 SOVEREIGN IMMUNITY AND INTERNATIONAL 

PROTECTION 

From time immemorial, the doctrine of sovereign immunity 

has assumed a place of prominence in interstate relations. The 

simple import of this doctrine is that no sovereign could be 

impeached in the court of another sovereign without its consent, 

or any administrative action taken against the sovereign. The rule 

is hinged on two international law maxims: „Par in parem non 

habet imperium‟ and par in parem non habet jurisdictionem. This 

means an equal has no power over another equal, and an equal 

has no jurisdiction over another equal, respectively. 

In traditional international law, it has thus been generally 

accepted that a foreign sovereign state was absolutely immune 

from the jurisdiction of municipal courts in all cases.

308 

Based on these rules, states enjoyed absolute immunity in 

all their acts, be them of public or private nature. The substantive 

principle of sovereign immunity as practised by states has been 

expressed in terms of sovereignty and independence, dignity, 88 

extraterritoriality, and comity of nations. All these notions seem to 

come together and they constitute a firm international legal and 

theoretical basis for sovereign immunity. 

In traditional international law, it has thus been generally 

accepted that a foreign sovereign state was absolutely immune 

from the jurisdiction of municipal courts in all cases. Several 

courts‟ decisions in the U.K, 89 America, 90 India 91 have all in the 

past given flesh and blood to the rule of absolute sovereign 

immunity. The former socialist states for most of the time up held 

the rule of absolute sovereign immunity predicated on their 

ideology of public ownership of all means of production which 

never permitted any form of private commercial acts within the 

socialist structure. 

88. Schooner Exchange Vs. Mc Faden (1812) 7 Granch 116. 

89. In the Parliament Bekge (1878)4 P.D129 and Re: Cristina (1938) ACP 485. 

90. The Pesaro (1926)271 U.S. 562. 

91. U.A.R. Vs. Mirza Ali Kasham (1962) 49 AIR P. 38 Duterai and Co. Vs. Pokerdan Mergra (1952) and 

Re: Commissioner for workmen’s compensation (1951)38 AIR p. 880.

309 

Some newly independent states of Africa and Asia including 

Nigeria 92 had upheld and still uphold the rule of absolute 

sovereign immunity. 

Practically, the application of the doctrine of absolute 

immunity seems convenient and certain except that it created 

hardship and discouraged trading activities as a bona fide 

businessman stood the risk of losing all he has in business to a 

state claiming sovereign immunity. This would in result defeat the 

main purpose of a capitalist society-maximization of profit. 

At the beginning of the 20 th century, with the increase in 

volume of commercial activities involving states, it became 

unacceptable to many states to stick tenaciously to the doctrine of 

absolute immunity for all acts of states. A new doctrine was 

evolved that distinguished the public acts of government (acta jure 

imperii) from the commercial acts (acta jure gestionis) for the 

purpose of granting immunity. The doctrine is 

known as restrictive immunity. Under this doctrine, states enjoy 

immunity in respect of such acts that have public character but 

not in respect of commercial acts. 

92. LFN 1990, CAP 99. Also in the case of Kramer Italy Vs. Government of Belgium suit No. 

CA/L/244/84.

310 

The dominant focus of the doctrine of restrictive immunity in 

the United States is the Tate letter where the department of state 

announced its intention to follow the restrictive principle. 93 The 

final mark of this department was the testimony of Mr. Monroe 

Leigh, the then legal adviser of the state department at a house 

hearing, when he noted that: 

The purpose of sovereign immunity in 

modern international law is to … provide a 

protection to a state from the burden of 

defending lawsuits based on its public acts. 

However if it enters the market place, there 

is no justification for allowing it to avoid the 

economic consequences of its acts. 94 

This position has now found legislative expression in United 

States foreign sovereignty immunity Act 1976. In the United 

Kingdom, the case of the Trendtex Trading Corporation Vs. 

Central bank of Nigeria 95 uphold the rule of restrictive immunity 

by denying the CBN immunity when the court noted that: 

93. The Department of State Bulleting 1952 pp. 983-5. 

94. (1976)70 AJIL P.81 

95. (1977) Q.B 529 

The modern principles of restrictive 

sovereign immunity in international law, 

giving no immunity for acts of a commercial 

nature is consonant to justice, comity and 

good sense.

311 

According to the court, even if the bank were part of the 

government of Nigeria, since international law recognizes no 

immunity from suit for government department in respect of 

ordinary commercial transactions, as distinct from acts of 

governmental nature, it was not immune from suit on plaintiff‟s 

claim in respect of letter of credit. 

In the case of Thai-Europe Tapioca Service Ltd. V. 

Government of Pakistan, 96 a German owned ship on charter to 

carry goods from Poland to Pakistan had been bombed in Karachi 

by Indian Planes during the 1971 War. Since the agreement 

provided for disputes to be settled by arbitration in England, the 

matter came eventually before the English courts. The cargo had 

previously been consigned to a Pakistani corporation, and that 

corporation had been taken over by the Pakistani Government. 

The ship owner sued the government for the 67- day delay in 

unloading that had resulted from the bombing. The government 

pleaded sovereign immunity and sought to have the action 

dismissed. 

Lord Denning declared in this case: 

96 (1975) IWLR 1485 ;64 ILR, P. 81. 

That there were certain exceptions to the 

doctrine of Sovereign immunity, did not apply

312 

where the action concerned land situated in 

the UK or trust funds lodged in the UK or 

debts incurred in the jurisdiction for services 

rendered to property in the UK nor was there 

any immunity when a commercial transition 

was entered into with a trader in the UK… 

Equally, the Vienna Convention on Diplomatic Relations 

1961 restricts the civil and administrative immunities of 

diplomatic agents in certain cases. Gasiokwu further states: 

There is no doubt that concerted efforts 

have been made restricting the immunity of 

a sovereign in order to protect the right of 

private property. 97 

Based on the foregoing, it is correct to submit that if the 

sovereign powers will have their immunity restricted in order to 

protect rights to private property, an object for human 

gratification it will be more rational to restrict such immunities 

with respect to the protection of a higher order which is human 

life, freedom and dignity 98. 

It is therefore correct to conclude that a grave crime, which 

is basis for arresting a consular officer, must be that which affects 

human life in an offensive manner. Such acts as hostage taking 

torture, genocide, terrorism, piracy, hijacking, etc are most 

certainly offensive to the international community and are 

97 Gasiokwu, M.U. ‘The Pinochet – British Extradition Episode issues and Problems in 

Interational Law’ an Unpublished work, Faculty of Law, University of Jos, Jos, 2001, P.12 

98 Ibid.

313 

therefore grave crimes. These offences are recognized in 

international law as crimes against humanity. 

The 1945 Nuremberg Charter has provided for three 

categories of crimes against international law. These are crimes 

against peace (eg beginning a war of aggression or in violation of 

treaties). Crimes against humanity are defined in Article VI of the 

Nuremberg Charter as: 

Any of the following Murder, extermination, 

enslavement, starvation, or deportation and 

other inhuman acts committed against any 

civilian population and persecution on 

national, racial, religious or political 

grounds. 

The Nuremberg Tribunal observes that these crimes are 

heinous individual crimes for which international law requires 

states to punish the guilty persons adequately in accordance with 

the rules of their internal laws. Such crimes are committed by 

men not abstract entities, and only by punishing the individuals 

who commit such crimes can the provisions of international law 

be enforced 99. 

The restrictive immunity practice of states has now been 

concretized by statutory enactments in Europe, 100 America, 101 

99 Hansand, Vol. 253, Col. 831, Dec, 2 1963, B.Y.I.L. 1963, P. 2123. 

100. European Convention on Immunity and Protocol, 1972, the British State Immunity Act, 1978 

101. The U.S Foreign Sovereign Immunities Act, 1976

314 

Asia 102 and South Africa. 103 In international law, this doctrine has 

also found expression e.g. 1972 European Convention which 

allows immunity except in certain listed categories. Equally the 

Vienna Convention on Diplomatic Relations 1961 restricts the civil 

and administrative immunities of diplomatic agents in certain 

cases. 

There is no doubt that concerted efforts have been made 

restricting the immunity of a sovereign in order to protect the right 

of private property. It is submitted here that if the sovereign 

powers will have their immunity restricted in order to protect 

rights to private property, an object for human gratification, it will 

be more rational to restrict such immunities with respect to the 

protection of a higher order which is human life, freedom and 

dignity. 

This principle of restrictive immunity can quite easily have 

consequences on the agents of states abroad. This is to say that 

an agent of a state who is involved in an act which is offensive to 

the international community could be a victim of this restrictive 

immunity. A head of state or government who is involved in acts 

outside the internationally recognized functions of a head of state 

102. The Singapore State Immunity Act, 1981 

103. Article South African Foreign State Immunity Act, 1982

315 

or government could be prosecuted. The Hague trials of war 

criminals where certain internationally protected persons were 

tried and convicted prove this point further. These trials can take 

place only after the internationally protected person has left office 

or when his immunity is waived.

316 

CHAPTER SIX 

TECHNICAL CONSIDERATIONS 

6.1 APPOINTMENT AND COMMENCEMENT OF PRIVILEGES 

AND IMMUNITIES 

In most countries it is an essential requirement for entry into 

the diplomatic service that the candidate should be a subject or 

citizen of the country. In Britain, candidates are tested by the Civil 

Service Selection Board for their aptitude in dealing with the 

administrative problems passed by a given dossier; in the handling 

of discussions in small groups and in committee; and in drafting. 

Their character and personality are assessed after searching 

observation and the application of psychological tests. As edited by 

Lord Gore-Booth: 

In considering what sort of person the 

selectors should look for among younger 

candidates for the service it is important to 

discern not only present attainments but 

also future potentiality, distinguish qualities 

of mind and character from acquired 

knowledge. Knowledge of his own country, 

rooted in familiarity with its history and 

culture; and he should have a grasp of the 

forces at work in its social, political and 

economic life. Unless he has this kind of 

knowledge, and with it a powerful feeling of 

attachment (for which personal ambition and 

vanity are no substitute), he will be

317 

unconvincing as an interpreter of his 

country abroad... 1 

As Bismarck puts it in relation to what is expected of a diplomat: 

His work consists of practical intercourse 

with men, of judging accurately what people 

are likely to do in given circumstances, of 

appreciating accurately the views of others, 

and of accurately presenting his own. 2 

Lord Gore-Booth sums it up in the following words: 

In sum, the acceptable candidate for 

diplomacy should be at the same time a 

thinker and a doer, who is outgoing, but not 

insincere, studious and reflective but not 

withdrawn. He should not be too pleased 

with himself or easily offended; and he 

should be able to distinguish between the 

consideration and the treatment that he 

receives on account of his position and that 

which is due to him personally. He should 

combine a coldly analytical mind with a 

warm personality; and although he cannot 

always be his natural self he must be 

inherently frank and honest, and be able to 

inspire trust and confidence in others 3. 

Although the views of Bismarck and Gore-Booth are largely 

accurate, they are not hard and fast. This is because not all 

diplomats can be sincere, studious and reflective. 

Selections for diplomatic practice are essentially political in 

nature. States appoint people who are respected in the society. In 

1 

Lord Gore-Booth, Op. Cit. p.78. 

2 

Ibid. p.79 

3 

Ibid. pp.79-80

318 

the United States, posts of prime importance are often held by 

people of distinguished standing in public life, nearly always drawn 

from the political party in power. 4 

Worthy of note is that, the establishment of consular or 

diplomatic relations of permanent nature, based on Articles 2 of the 

1961 and 1963 conventions respectively, takes place by mutual 

consent. In this wise, consular relations have no political 

consequences, and can be maintained in a non-sovereign state, or 

unrecognized regimes. Diplomatic relations on the other hand are 

political and can only be maintained between sovereign states and 

with recognized regimes. 

Unlike diplomatic missions, Consulates may be established in 

different regions of the host state. Therefore, there has to be an 

agreement between the sending state and the receiving state over 

areas to cover. Sen observes that: 

The very nature of the functions of a 

consulate that is, promotion of trade and 

commerce and protection of the interests of 

the nationals of the sending state, 

necessitates establishments of consular 

offices in areas where trade and industry are 

concentrated. 5 

4 Satow, E. Op.cit. p.77 

5 Lee, L. T., Vienna Convention on Consular Relations (A. W. Sythoff-Ieyden: Rule of Law Press; 1966). 

P.41

319 

The consent given for the establishment of diplomatic 

relations between two states imply, unless otherwise stated, 

consent to the establishment of consular relations. And the 

severance of diplomatic relations shall not ipso facto involve the 

severance of consular relations. 6 

The appointment of the head of the mission is done by the 

sending state subject to the agreement of the host state. The host 

state that may refuse to give this agreement is not under a duty 

based on international law to give reasons to the sending state for 

such refusal. 7 Two or more states may accredit the same person as 

head of mission to another state, unless objection is offered by the 

receiving state. 8 If the sending state accredits a head of mission to 

one or more other states, it may establish a diplomatic mission 

headed by a Charge d‟ Affaires ad interim in each state where the 

head of mission has not his permanent seat. 9 This is known as 

concurrent accreditation. The sending state based on Article 7 of 

the 1961 Convention, may freely appoint the members of the staff 

of the mission. In the case of military, naval or air attaches, the 

6 Articles 2 Paragraphs 2 and 3 of the 1963 Convention. 

7 Article 4 paragraphs 1 and 2 of the 1961 Convention. 

8 Article 6 of the 1961 Convention 

9 Article 5 paragraph 2 of the 1961 Convention.

320 

receiving state may require their names to be submitted before 

hand, for its approval. Sen B. citing J. G. Starke says: 

The appointment of an ambassador or 

minister is usually announced to the state 

which is credited in certain official papers, 

with which the envoy is furnished with 

letters known as „letters of credence‟ or 

„letters de creance. These are for remission 

to the receiving state. 10 

In the case of consuls, they are provided by the sending state 

with a commission, which is transmitted to the government of the 

receiving state. This notification is indispensable, and the receiving 

state‟s response is to grant their authorization; for without this the 

officer cannot take up his duties. The authorization, if is a 

document is called an exequatur. The receiving state may however 

refuse to grant an exequatur: and if so the sending state may 

enquire the reason through the diplomatic channel, though the 

receiving state is under no obligation to give it. 

The consular commission is different from the „letter of 

credence‟ given to the diplomat in the sense that it is not addressed 

to the head of state of the receiving state. It is sent to the 

government of the receiving state through diplomatic channel. The 

1963 Convention provides: 

10 Sen B. A Diplomatic Handbook of International Law and Practice (2 nd ed.) 1979, p.46.

321 

The sending state transmit the commission 

or similar instrument through the diplomatic 

or other appropriate channel to the 

government of the state in whose territory 

the head of a consular post is to exercise his 

functions. 11 

A diplomat is said to have taken up his function when he 

presents his letter of credence to the external Affairs Ministry of the 

Receiving State. 12 Precedence here is by date and time of arrival of 

head of mission. 13 

In the case of a consul, he takes up his function when he is 

granted an exequatur by the receiving state. 14 Precedence here is 

by date of grant of exequatur. 15 In this wise, both are different in 

the sense that while a diplomat enters into this functions on 

presentation of his „letter of credence‟, a consul can enter into his 

functions before he is granted an exequatur. The similarity 

between the exequatur and „letter of credence‟ is that both are 

authorization to carry out functions. International law however 

provides that: 

11 Article 11 paragraph 2 of the 1963 Convention. 

12 Article 13 of the 1961 Convention. 




Every person entitled to privileges and 

immunities shall enjoy them from the 

moment he enters the territory of the 

receiving state on proceeding to take up his

322 

post or, if already in its territory; from the 

moment when his appointment is notified to 

the ministry for foreign affairs or such other 

ministry as may be agreed. 16 

The problem with the provision above is that the Head of the 

Mission is not considered as having taken up his function until he 

has presented his credentials. Or when he has notified his arrival 

and a true copy of his credentials has been presented to the 

appropriate ministry; yet his privileges and immunities commence 

from the moment he entered the territory of the receiving state on 

proceeding to take up his past. The implication of this is that under 

the first lap of Article 39(1), privileges and immunities of the Head 

of the mission attach to him even at a time when he is „not 

considered as having taken up his function in the receiving state‟. 

Visits by internationally protected persons must be arranged 

between the sending state and the receiving state as contained in 

the provision above. In other words, the receiving state must have 

been notified about the visit and must have consented to it and the 

date fixed for it. States understudy their domestic atmosphere 

before they give consent to dates. In fact there have been 

cancellations of impending visits earlier agreed upon, necessitated 


323 

by unconducive domestic atmosphere especially when states 

cannot guarantee the safety of the visitor. The purpose of the visit, 

official or unofficial does not matter as long as the receiving state 

has been informed and has agreed to host the foreign official. E.g., 

Babangida‟s visit to France for treatment, though a private visit; 

the French gave him special protection. When internationally 

protected persons travel incognito, that is, without prior notice or 

identification for either official or private purpose, they do not enjoy 

special protection. This protection is also not provided where a 

Head of State or Government has been deposed or replaced, when 

they travel abroad. Thus General Yakubu Gowon (Rtd) did not 

enjoy any special protection in London where he stayed. The 

exception here is that if such a deposed or replaced head of state 

travels abroad as a representative of his state or government, he 

enjoys special protection. Thus when General Olusegun Obasanjo 

(Rtd.) travelled to South Africa in 1987 among the „Eminent 

Persons Group‟ of the Commonwealth to evaluate the situation in 

the place, he was granted special protection. 

In relation to international officials, they must be recruited on 

a broad geographical basis. The UN charter provides: 

The paramount consideration in the 

employment of the staff and in the

324 

determination of the conditions of service 

shall be the necessity of securing the highest 

standards of efficiency, competence, and 

integrity. Due regard shall be paid to the 

importance of recruiting staff on as wide a 

geographical basis as possible. 17 

Each Secretary-General has the staff exclusive competence to 

appoint all his staff. 18 Appointment in an international 

administration is obviously different from any national 

appointments. The responsibility for this, under regulations by the 

General Assembly falls on the Secretary-General. Hence, nobody 

can impose a candidate on him nor exercise a decisive influence on 

his choice. This principle is expressed in the report of the 

International Civil Service Advisory Board on recruitment methods 

and standards for the UN and the Specialised Agencies, as follows: 

17 Article 101 paragraph 3 of the U.N. Charter. 

18 Article 101 paragraph 1 of the U. N. Charter. 

The Board notes with satisfaction that the 

constitutional basis for the independent 

selection of staff by the Secretary-General 

and Executive Heads of the specialised 

agencies has been well established. It 

attaches great importance to this principle 

and is convinced that as international 

secretariat desired high standards can be 

achieved only if this principle is maintained 

in practice as well as in theory…. The Board 

wishes to point out that government officials 

and delegations, in particular, have a high 

responsibility in supporting the executive

325 

Head in his independent application of the 

basic criteria to the selection of his staff. 19 

Be that as it may, the appointment of any member of the 

class known as „internationally protected persons‟ is done officially 

by giving serious attention to people of distinguished standing in 

public life. Whether in concrete existential realities this is 

obtainable, falls outside the scope of this work. 

6.2 DURATION OF PROTECTION 

Privileges and immunities, as protective as they are have 

duration. They are not meant to benefits individuals but rather to 

ensure the efficient performance of his functions. Based on this 

fact, they are meant to serve specific purposes. However there are 

instances when these privileges and immunities avail the person 

protected no more. These instances include the following: 

(i) In the event of termination of a diplomatic mission; 

(ii) Break of diplomatic relations; 

(iii) In the event of Waiver; and 

(iv) Relation to immunity from the civil and administrative 

jurisdiction of the receiving state, the exception incorporated 

in Article 31 paragraphs (a) to (c) of the 1961 convention on 

diplomatic relations. 

19 Doc. Co-ord/civil Service /2/ Rev. 1-publ. UN 1950.

326 

6.2.1 Termination of Diplomatic Missions 

A diplomatic mission may come to an end in various ways: 

Recall of the envoy by the accrediting state: The 1961 

Convention provides that the function of a diplomatic agent comes 

to an end on notification by the sending state that the function of 

the diplomatic agent has come to an end. 20 A letter of recall is 

usually handed to the Head of State or to the Minister of Foreign 

Affairs in solemn audience, and the envoy receives a „letter de 

Recreance‟ acknowledging his recall. In certain circumstances, the 

recall of an envoy will have the gravest significance e.g. when it is 

intended to warn the receiving state of the accrediting states‟ 

dissatisfaction with their mutual relations. 

In the event of death of a member of a mission, the 1961 

Convention obliges the receiving state to permit the withdrawal of 

his movable property, with the exception of any property acquired 

in the country the export of which was prohibited at the time of his 

death. Estate, succession or inheritance duty may not be levied on 

movable property whose presence in the receiving state was due 

solely to the presence of the deceased as a member of a diplomatic 

mission. 21 The members of his family shall continue to enjoy the 

20 Article 43 paragraph (a) of the 1961 Convention 


327 

privileges and immunities to which they are entitled until the expiry 

of a reasonable time in which to leave the country. 22 

In relation to consuls, the Convention on Consular Relations 

of 1963 provides that the functions of a member of a consular post 

comes to an end on notification by the sending state to the 

receiving state that his function have come to an end; on 

withdrawal of the exequatur; and on notification by the receiving 

state to the sending state that, the receiving state has ceased to 

consider him as member of the consular post. 23 Also based on the 

provision of the convention on Diplomatic relations, the function of 

a diplomatic mission comes to an end on notification by the 

receiving state to the sending state that it refuses to recognize the 

diplomatic agent as a member of the mission. 24 These two 

instances are where the consul or diplomatic agent is not recalled, 

or his functions terminated, but instead declared persona non 

grata. 25 

Persona non grata is the process by which an ambassador or 

other diplomatic agent who is personally unacceptable to the 

receiving government is removed or rejected. 26 The 1961 


23 Article 25 paragraphs (a) to (c) of the 1963 Convention. 

24 Article 43 paragraph (b) of the 1961 Convention. 

25 Article 9 paragraph (1) and (2) of the 1961 Convention. 

26 Lord Gore-Booth, Op.cit. p.178.

328 

Convention in Article 9 paragraph 1 provides that a person can be 

declared persona non grata or not acceptable before arriving in the 

territory of the receiving state. In which case he needs to be 

granted a visa or admitted on arrival. This view in relation to 

consuls agrees with Article 23 of the Convention on Consular 

relations. 

Probably, the most dramatic case of declaration persona non 

grata occurred in 1971 when the British Government requested the 

withdrawal of 105 soviet Government officials, many of who were 

on the diplomatic staff of Soviet Union‟s embassy in London. 27 

In June 1986, Libyan Ambassador to Egypt was declared 

persona non grata after being detected by Security Authorities 

distributing pamphlets hostile to the regime of president Sadat of 

Egypt. 28 

The release in October 1976 of evidence of widespread 

smuggling and illegal sales of drugs, alcohol and cigarettes by 

North Korean diplomats in Scandinavia led to a number of 

declarations of persona non grata. It can be affirmed that based on 

Article 42 of the Convention on Diplomatic Relations, a diplomatic 

agent is not authorized to practice for personal profit any 

27 Lord Gore-Booth, Op.cit. p.184 

28 Ibid p.186

329 

professional or commercial activity in the receiving state. The first 

country to act was Denmark, which gave the North Korean 

Ambassador and his entire diplomatic staff six days to leave on the 

grounds that they had turned their embassy into a front for the 

illegal import and sale of drugs, liquor and cigarettes. 29 These acts 

by the Korean Ambassador also violated Article 41 of the 

convention in diplomatic relations which enjoins every person 

enjoying privileges and immunities to respect the laws of the 

receiving state and not to interfere in the internal affairs of that 

state; and not to use the premises of the mission in any way 

inconsistent with the functions of the mission. 30 

Also in July 1984, following the unsuccessful abduction 

attempt on Dr. Umaru Dikko, a wanted politician residing in 

London, two Nigerian diplomats in Britain were declared persona 

non grata and deported. In retaliation, the Nigerian Government 

declared two opposite numbers in the British embassy personal 

non grata. 

The termination of diplomatic mission can also come about as 

a result of, if temporary, with the completion of negotiations or 

29 Lord Gore-Booth, Loc. cit. 

30 Article 41 paragraphs (1) and (3) of The 1961 Convention.

330 

conclusion of the mission, and also at the expiration of letters of 

credence given for a limited period only. 

6.2.2 Break of Diplomatic Relations 

Where displeasure is not with a diplomat personally but the 

policies or conduct of the sending state, the correct course is to 

break diplomatic relations. This act, usually decided and 

announced unilaterally, indicates a strong objection by a 

government to language or actions on the part of another 

government or other governments. 

Since the Second World War, there have been a number of 

instances of formal breaking of diplomatic relations. In 1951 Iran 

broke off relations with the U.K., which never resumed until 

December 1952. On 6 th November 1956, precisely one day before 

the cease-fire, which brought the Suez incident to an end, Saudi 

Arabia broke off diplomatic relations with Britain and France. 

Relations were not reopened until September the 9 th 1962 in the 

case of France, and June the 16 th in that of Britain. 31 

At the beginning of the so-called „Six Day War‟ of June 1967 

between certain Arab states and Israel, an alarm which was false 

was transmitted by the Government of Jordan to President Gamel 


331 

Abdel Nasser of Egypt that American and British aircraft were on 

their way to cross Israel and attack Jordan. Though the rumour 

was false, the Egyptian leadership committed itself publicly to its 

acceptance and consequently, diplomatic relations were broken off 

between Egypt and the U.S. and Britain, by Egypt. 32 

In August 1976, the U.K. broke off diplomatic relations with 

the Government of President Idi Amin. The U.K. argued that its 

purpose in so doing was not so much to rebuke or influence 

President Amin as to confirm that the President had rendered 

impossible the proper functioning of the United Kingdom High 

Commissioner in Kampala. 33 

In Nigeria, during the civil war of 1967-1970, following the 

recognition extended to Biafra by Gabon, Tanzania, Haiti, Ivory 

Coast and Zambia, Nigeria cut off relations with the five states. 

This was however reestablished at the end of the civil war. 

Though internationally protected persons carry out 

negotiations in the international system, in the event of an 

outbreak of war, diplomacy takes on a new dimension, which 

hardly has the immunity of the diplomat in mind. At such times 

states are enjoined to grant facilities in order to enable persons 

32 Ibid. p.189 

33 Ibid. p.l90.

332 

enjoying privileges and immunities to leave at the earliest possible 

time. And in case of need, place at the disposal of such persons 

necessary means of transport for themselves and their property. 34 

Sometimes diplomatic relations may break following the 

disappearance of the head of state, either of the sending or 

receiving state. It is normally quickly apparent whether or not 

diplomatic appointments will be renewed. Only very exceptionally, 

like when the Royal Government of National Union of Cambodia 

replaced the Government of the Khmer Republic in May 1975, is 

there an interval before it becomes evident whether diplomatic 

appointments are being renewed. 35 

Diplomatic relations can also be broken when either of the 

two states ceases to recognize the other, as it was the case with 

Nigeria mentioned above between 1967 to 1970. Where diplomatic 

relations are broken, protection ceases after a reasonable period so 

as to allow diplomats return home safely. However, in relation to 

international officials and representatives of intergovernmental 

organisations, a censure of a member to become a member of the 

UN for instance, may withdraw benefits of the UN but will not stop 

such non-member from acting in accordance with the principles of 

34 Articles 44 and 45 paragraphs (a) (b) and (c) of the 1961 Convention. 


333 

the UN so far as may be necessary for the maintenance of 

international peace and security. 36 This view has however been 

argued that since the UN is an organisation established by treaty, 

non-members should not be bound. 

6.2.3 Waivers 

Waiver in law means the surrender of a known right or an 

excuse for non-performance. The term “Waiver” is used with 

different meanings and must therefore be related to particular 

situations. An agreement for considerations for a previous 

obligation or a choice of one right, which causes the loss of others, 

is sometimes called a waiver. More often waiver refers to a promise 

or permission excusing some condition of a duty to render 

performance or an obligation due presently or in the future or 

relinquishing a legal defense. Generally a waiver must be 

intentional or voluntary and knowledge of the facts necessary to 

effectuate a waiver required. Conduct evidencing an intention to 

waive may be sufficient to work a relinquishment of a right or 

advantage. 37 

The convention on diplomatic relations provides that the 

immunity from the receiving states‟ jurisdiction, of a diplomatic 

36 Article 2 paragraph 6 of the UN Charter. 

37 The Enyclopedia Americana, Vol. 28

334 

agent, does not exempt him from jurisdiction of the sending state. 38 

Section 32 goes ahead to provide that such immunity can be 

waived by the sending state. And that such waiver must be 

expressed and that waiver of immunity from jurisdiction in respect 

of civil and administrative proceedings is not the same as waiver of 

immunity in respect of execution, which requires another waiver. 

Waiver can be explained to be instances when the immunity 

of a person enjoying privileges and immunities is lifted so as not to 

impede the course of justice. This waiver may not be permanent 

and used in a particular case or cases and such immunity may be 

restored or not, depending on the cause of such waiver. 

The Nigerian Act Cap 99 of 1990 proves that a foreign envoy 

or foreign consul with the consent of his government may waive 

any immunity or inviolability conferred on him by the Act. 39 This 

Act provides same in relation to Commonwealth representatives, 40 

and in relation to representatives attending international 

conferences, it provides that any organisation or person may waive 

any immunity, inviolability or privileges conferred on it or him 

under the Act. 41 


39 Section 1 paragraph 2. 

40 Section 7 paragraph 1. 

41 Section 15.

335 

The convention on the Privileges and Immunities of the UN 

also provides: 

…The Secretary-General shall have the right 

and duty to waive the immunity of any 

official in any case where, in his opinion, the 

immunity would impede the course of justice 

and can be waived without prejudice to the 

interests of the UN… 42 

This provision agrees with Article VI Section 23 in relation to 

experts on missions for the UN. In relation to the Secretary- 

General, Article V Section 20 of the same convention further 

provides that the Security Council shall have the right to waive 

immunity. 

Although there are elaborate provisions on waivers, state 

practice has hardly reflected the desire of international law. In the 

1984 Umaru Dikko case, the Nigerian Government denied any 

involvement in the kidnap bid. British Authorities arrested and 

detained 17 people some of whom were Nigerian diplomats. This 

raised a serious question of inviolability of diplomats. The British 

demand for a waiver of diplomatic immunity for the Nigerian 

officials was rejected. 

It is possible of course, for a state to waive expressly or 

impliedly its immunity from the jurisdiction of the court. Express 

42 Article V, Section 20.

336 

waiver of immunity from jurisdiction, however, does not itself mean 

waiver of immunity from execution. 43 In the case of implied waiver, 

same case is required. Section 2 of the State Immunity Act provides 

for loss of immunity upon submission to the jurisdiction, either by 

a prior written agreement 44 or after the particular dispute has 

arisen. A state is deemed to have submitted to the jurisdiction 

where the state has instituted proceedings or has intervened or 

taken any step in the proceedings. 45 

If a state submits to proceedings, it is deemed to have 

submitted to any counterclaim arising out of the same legal 

relationship or facts as the claim. 46 A provision in an agreement 

that it is to be governed by the law of the UK is not to be taken as a 

submission. By section 9, a state, which has agreed in writing to 

submit a dispute to arbitration, is not immune from proceeding in 

the courts, which relate to the arbitration. 47 The issue of waiver is 

also a key factor in many US cases. 48 

43 

Article 18 (2) of the ILC Draft Articles on Jurisdictional immunities, Report of the International Law 

Association, 1991, P. 000. 

44 

Kahan V. Pakistan Federation (1951) 2 KB 1003: 18 ILR, P. 210. 

45 

Article 1 of the European Convention on State Immunity, 1972. 

46 


47 


48 

Section 1605 (a) (1) of the US Foreign Sovereign Immunities Act, 1976.

337 

Accordingly, Lord Phillimore in Engelke Vs. Musmann 49 said 

of the immunity of an ambassador that it is accorded him in order 

that he may transact his sovereign‟s business, and hence is a 

“privilege which he cannot waive unless under direction from his 

sovereign.” 

The practical difficulties of such a rule are overcome, perhaps 

by a presumption that a waiver actually made is with the consent 

of the sending state. 

In Re Suarez, 50 the defendant was the Bolivian Minster to 

London, and was also the administrator of an estate respecting 

which the action arose. A formal waiver of diplomatic immunity was 

given and an order was made. Three years later execution of the 

order was sought, and one of the defenses raised was that the 

waiver was invalid because it had not been shown that it was given 

with the government‟s consent. The Court of Appeal found that in 

fact this consent had been given, but that even if it had not it 

would have been. 

49 (1928) A.C. 433 at P. 450. 

50 (1972) 2 Ch. 131.

6.2.4 Other Instances 

338 

Other instance where the immunity of a protected person may 

be tampered exists in Article 31 of the Convention on diplomatic 

relations. It provides that a diplomatic agent shall also enjoy 

immunity from the civil and administrative jurisdiction of the 

receiving state except in the case of a real action relating to private 

immovable property situated in the territory of the receiving state, 

unless he holds it on behalf of the sending state for purposes of the 

mission; an action relating to succession in which he is involved as 

executor, administrator, her or legates as a private person and not 

on behalf of the Sending States; an action relating to any 

professional or commercial activity exercised by him in the 

receiving state outside his official functions. 51 This simply means 

that a diplomatic agent falling within these exceptions shall not be 

protected to the extent of the receiving states‟ civil and 

administrative jurisdictions. These exceptions are further 

strengthened by Articles 42 and 41 both of which prohibit the 

involvement of the diplomatic agent in the internal affairs of the 

receiving state and also to respect the laws of the state; to ensure 

the lawful use of diplomatic premises; and not to practice for 

51 Article 31 paragraphs (a) to (c).

339 

personal profit any professional or commercial activity in the 

receiving state. 

However by the provision of Article 31 paragraph 2 that a 

diplomatic agent is not obliged to give evidence as a witness, 

international law entangles itself to the extent that since a waiver is 

required before a diplomatic agent can fall within the civil and 

administrative jurisdiction of the receiving states, the matter is not 

solved, since states can for political or economic reasons refuse 

such waivers. If the receiving states had exclusive rights to act 

concerning the exceptions mentioned, international law would have 

made a more serious mark. It is however easy to understand the 

position of international law since these protected persons 

represent their states and governments; to turn the receiving state 

on any of them without adequate check would violate respect for 

territorial integrity and sovereignty of states which is a 

fundamental principle of the UN. 

In respect of Consular agents where criminal proceedings are 

instituted against a consular officer, he must appear before the 

competent authorities. However proceedings shall be conducted 

with respect and regard due him by reason of his official position. 

He shall be liable to arrest or detention pending trial in case of a

340 

grave crime or decision by a decision of a competent judicial 

authority and based on this principle, can also be committed to 

prison or any other form of restrictions on their personal freedom. 52 

In the event of an arrest, detention or prosecution, the receiving 

state shall notify the head of the consular post. If the head is 

himself the object of such arrest or detention, the receiving state 

shall notify the sending state through the diplomatic channel. 53 

Consular officers may also be called to give evidence but he is 

under no obligation to so do in matters relating to the exercise of 

their functions or to produce official correspondence and 

documents relating thereto. 54 Consular officers shall also be 

amenable to the jurisdiction of the judicial or administrative 

authorities of the receiving state where he is a party to a contract 

not expressly or implied as an agent of the sending state; or a civil 

action relating to a third party for damages arising from an 

accident in the receiving state caused by a vehicle, vessel or 

aircraft. 55 

In each of these cases, the wheel of privileges and immunities 

either grants wholly to a halt or partly. In some milder cases 

52 Article 41 paragraphs (1) to (3) of the 1963 convention. 



55 Article 43 paragraphs (1) and (2) (a) and (b) of the 1963 Convention.

341 

however, such immunities are returned to the person. For though 

some other reasons may exist where international law and 

municipal laws are confronted with the problem of an erring 

protected person or a hitch in the diplomatic practice, the reasons 

discussed in this part of the chapter determine the duration of 

privileges and immunities more than anything else. 

6.2 ENFORCEMENT OF PRIVILEGES AND IMMUNITIES 

International law, based on various conventions and treaties, 

enforce privileges and immunities. The 1961 Convention on 

Diplomatic Relations provides: 

1. The Premises of the mission shall be inviolable. The 

agents of the receiving state may not enter them, except 

with the consent of the head of the mission. 

2. 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. 

3. The premises of the mission, their furnishings and other 

property thereon and the means of transport of the

342 

mission shall be immune from search, requisition, 

attachment or execution. 56 

The 1963 Convention provides essentially same in relation to 

consular premises with an exception that “the consent of the head 

of consular post may be assumed in case of fire or other disaster 

requiring prompt protective action. 57 The 1969 Convention on 

Special Missions also allows entry into the premises in case of fire 

or another serious disaster when the head of the mission cannot be 

contacted to obtain his consent. 58 

Based on paragraph 2 of the 1961 convention, the receiving 

state is under a special duty to take all appropriate steps to protect 

the premises of the mission. Though what steps are appropriate is 

not defined, every case is determined by its peculiar facts. The 

1961 convention further provides: 


inviolable. He shall not be liable to any form 

of arrest or detention. The receiving state 

shall treat him with due respect and shall 

take all appropriate steps to prevent any 

attack on his person, freedom or dignity. 59 

The convention on special missions provides personal 

immunity to members of special missions also but adds that an 

56 Article 22 paragraphs (1) to (3). 

57 Article 31 paragraph 2. 


59 Article 29.

343 

action for damages arising out of an accident caused by a vehicle 

outside the official function of the person involved is not within the 

scope of immunity from the civil and administrative jurisdiction of 

the host state. 60 The 1963 convention also provides: 

The receiving state shall treat consular 

officers with due respect and shall take all 

appropriate steps to prevent any attack on 

their person, freedom or dignity. 61 

Based on Articles 29 of the 1961 convention and 40 of the 

1963 convention, the receiving state is under a special duty to take 

all appropriate steps to prevent attacks on the persons of a 

diplomatic agent or consular officer. The special duty in this case 

is prescribed by international law and what constitutes all 

appropriate steps is also determined by the facts of a particular 

case. 

Privileges and immunities as accorded internationally 

protected persons are contained in various conventions and treaties 

as discussed in the preceding chapter to this one. The few 

provisions by various conventions stated in this section of this 

chapter show the helplessness of international law to enforce these 

immunities in isolation from states. Since a special duty has been 

placed on states to take all appropriate steps to protect diplomats, 

60 Article 31.

344 

it will be logical to suggest that it works in collaboration with states 

to ensure the enforceability of these immunities and privileges. 

The 1961 Convention again provides: 

This present convention is subject to 

ratification. The instruments of ratification 

shall be deposited with the Secretary- 

General of the United Nations. 62 

The above provision shows the realization by international 

law of its inability to exist in a vacuum and the impossibility of 

enforcing these privileges and immunities since they are intended 

to facilitate interactions within and among states and/or 

intergovernmental organisations. And in another perspective, since 

diplomats, move from their own state territories to others, it makes 

sense to place such special duty of protection on states, thereby 

making them play a role in the enforceability of these privileges and 

immunities, as well as checking their conduct in relation to 

diplomats. In the end, states do not only have a duty to protect 

diplomats but enforce privileges and immunities by municipal 

enactments that regulate the conduct of its nationals in relation to 

diplomatists. An example here is the Diplomatic Immunities and 

privileges Act enacted by the legislature of the Federation of Nigeria 


62 Article 49.

345 

Cap 99 in 1990, which is an Act to consolidate and amend certain 

enactments relating to diplomatic immunities and privileges. 

The task however of international law, working in 

collaboration with states, in this regard (enforcing privileges and 

immunities) is uphill. This is because the international system is 

made up of states that do not necessarily have the same size; 

strength: economic or political; but share boundaries, and have 

different dreams and aspirations most of which conflict those of 

other individual states or collective states as in the case of 

international organisations. It is the size of the international 

system that has given international law the caution to involve 

states in the observance and enforceability of privileges and 

immunities, operating by way of municipal enactments that 

essentially reflect international law prescriptions. 

Some of the factors, however, militating against the 

enforcement of privileges and immunities include the following: 

(i) Acts of terrorism; 

(ii) War or armed conflict; and 

(iii) Policies of states. 

Diplomats and diplomatic premises have often been attacked 

for various reasons ranging from revolutionary strategies to put

346 

pressure on states, to attacks for purposes of bargain. Sometimes 

diplomats are not necessarily attacked but kidnapped. In August 

1988, young men in fatigue uniforms blocked the American 

Ambassador to Guatemala, John Mein, returning from lunch in his 

official car in a street. Sensing danger, he attempted to run and 

was shot dead. The next day an organisation announced that he 

was shot while resisting political kidnapping. 63 

On September the 4 th 1968 the US Ambassador in Brazil was 

forced out of his car and a note left in it describing him to be a 

„symbol of exploitation‟ and demanding the publication of a 

manifesto and release of 15 political prisoners. The Brazilian 

government agreed to these demands and the Ambassador was 

released three days after the kidnapping, describing his captors to 

be „young‟ determined, intelligent fanatics who would have carried 

out their threat if their demand had not been met. 64 

Other kidnappings and murder were those in Canada in 1970 

of the minister of Labour of the Province of Quebec; kidnapping in 

the same year of British Trade Commissioner in Montreal; the 

kidnapping in 1971 of British Ambassador in Uruguay; the 

kidnapping and murder of Israel Consul-General in Istanbul by 

63 

Lord Gore-Booth, Op.cit. p.199. 

64 

Ibid. p.200.

347 

Turkish terrorists in May 1971; and the appalling sequel to the 

occupation in March 1973 of the Saudi-Arabian embassy in 

Khartoum by the Arab „Black September group‟ during which the 

American Ambassador, his counselor, and the Belgian charge 

d‟Affaires were murdered. 65 

Diplomatic premises have not been left out of attacks. On 

27 th January 1992, students of that country and the Ambassador 

held hostage invaded the embassy of the Republic of Niger in 

Lagos. 66 The students demanded the payment of their outstanding 

scholarship allowances. By February the 2 nd all the students had 

left after receiving an undisclosed sum of money. 

On 16 th September 1963, the British Government formally 

recognized the establishment of the Republic of Malaysia, an act 

that agitated the Indonesian government of President Sukarno. On 

that day demonstrators attacked the British embassy throwing 

stones and breaking 400 plate glass windows. 67 

And on December the 4 th 1979, a large group of 

demonstrators, demonstrating Iranian students, in Tehran 

protesting United States government‟s permission of the deposed 

Shah of Iran to enter the US for medical treatment, took over the 

65 Gore-Booth, Loc. cit. 

66 National Concord, 4 th February, 1992, p.28. 

67 Gore-Booth, Op.cit. 194.

348 

US embassy and held about 50 people hostages for four hundred 

and forty-four days. 68 

The legal position in relation to crimes against internationally 

protected persons is incorporated in the 1973 Convention, which 

was adopted by the General Assembly in Resolution 3166 (XXVIII) 

of 14 December 1974. This convention provides that persons 

alleged to have committed certain attacks against diplomatic agents 

and others should either be extradited or have their case submitted 

to the authorities of the state where the alleged offender is present, 

for the purpose of prosecution. It contains in addition, provisions 

concerning cooperation. The transmission of information and the 

treatment to be accorded to alleged offenders. 69 

The European Convention on the Suppression of Terrorism, 

signed on 27 January 1977 by member states of the Council of 

Europe, imposes an obligation on contracting states not to regard 

specific offenses (including hijacking, kidnapping and certain 

crimes of violence) as political offenses for the purpose of 

extradition; and while a state may refuse extradition in cases which 

it considers to be political, it must, if it does so, take into 

consideration when evaluating the character of the offence any 

68 Time Magazine, 14 th April, 1980. 


349 

particularly serious aspects of the offence and submit the case to 

the competent authorities for the purpose of prosecution. 70 

Though international law has made elaborate provisions, the 

policies of states, especially in relation to their economic interest, 

take an upper hand over international law, and its ability to enforce 

its will on such state depends on the strength and influence of 

such state. For instance, the American action in Panama (1988), 

Grenada (1983) and in Iraq (2003) did not receive the same 

approach as the Iraqi annexation of Kuwait and the apartheid 

regime in South Africa. In each of these cases, American interests 

well outweighed consideration for international law. The American 

action in the Gulf was decisive as opposed to her lukewarm attitude 

towards the Apartheid regime in South Africa. This lukewarmness 

was to protect American multinational corporations in South 

Africa. 

Enforceability of privileges and immunities becomes also 

uphill task in times of armed conflicts, as was the case in Liberia in 

1990 where Charles Taylor, leader of the National Patriotic Front 

rebel force, stormed the Nigerian embassy in Monrovia taking away 

Nigerians who sought refuge there and looting cars, electronic 

gadgets and everything of value. President Sam Doe was then the 

70 Lord Gore-Booth, Loc. cit.

350 

president but his authority was limited to the four-walls of his 

executive mansion. The legal position is this: 

And also: 

The receiving state must, even in case of 

armed conflict, respect and protect the 

premises of the mission, together with its 

property and archives…. 71 

The receiving state must, even in case of 

armed conflict, grant facilities in order to 

enable persons enjoying privileges and 

immunities… to leave at the earliest possible 

moment. It must in particular in case of need, 

place at their disposal the necessary means of 

transport for themselves and their property. 72 

Despite international law provisions, sometimes the armed 

conflict is so instantaneous that the government is displaced and 

the state left in total anarchy. What happens most times is that 

States tender apologies which most times are more a diplomatic 

requirement than a humanitarian or heart felt gesture. In the 

same vein Charles Taylor tendered a public apology to Nigerian 

peoples and Government: 

I will not hesitate as I have done before to apologize to 

Nigerians…. We are apologizing to the families of those journalists 

71 Article 45 paragraph (a) of the 1961 Convention. 

72 Article 44 of the 1961 Convention.

351 

and the Nigerian government. We hope that it will not happen 

again. 

Charles Taylor‟s attack was on political grounds as the NPFL 

accused Nigerian Government of arming the president Doe whom it 

was trying to oust. This point makes it the more questionable if 

Taylor‟s apology was inspired by human feelings or a mere 

diplomatic manoeuvre. 

In whatsoever way states fail to carry out their obligations by 

international law, the usual diplomatic gesture is to tender 

apologies to the parties that suffer in consequence. Where 

apologies do not do the trick, the UN, saddled with the burden of 

maintaining peace and security in an international system full of 

pressures and conflicting aspirations, steps in to save the situation, 

through its appropriate organ or organs. How the UN goes about 

this depends on the gravity of the case in question. 

Persons enjoying privileges and immunities sometimes, not 

realizing that their adherence to international law injunctions, 

helps to achieve privileges and immunities, violate international law 

thereby giving states a cause to fail in their duty of observation and 

enforcement of privileges and immunities. These violations and

352 

abuses by these persons therefore constitute the next chapter of 

this work.

353 

CHAPTER SEVEN 

ABUSE OF PRIVILEGES AND IMMUNITIES 

7.1 SCOPE AND WHAT CONSTITUTES ABUSE 

„Abuse‟ is defined to be wrong use; unjust custom or practice 

that has been established; angry or violent attack in words; bad 

language; cursing: deceive; ill-treat; say severe, cruel or unjust 

things to or about somebody 1. 

According to principles of international law, the state, by 

agreeing to receive the officials of foreign states, assumes the 

obligations concerning the treatment to be accorded them and is 

bound to extend to them a special protection. Thus the basis of the 

special protection of officials of foreign states is their personal 

inviolability, which is generally recognized by the practice of states 

and by the doctrine of international law. This inviolability has been 

also consecrated in Article 29 of the Vienna Convention on 

Diplomatic Relations; in Article 40 of the Vienna convention on 

special missions; and in Article 28 and 58 of the Vienna 

Convention on the Representation of states. 2 

1 (3 rd ed) Oxford Advanced Learner’s Dictionary of current English by A.S. Hornby(Oxford: Oxford; 1979) 

p. 4. 

2 Prietacznik, F., op cit. p. 3

354 

This special protection is also extended to the diplomatic 

premises where states are placed 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. 

This special duty on states was honoured even by the United 

States of America in relation to Noriega‟s arrest when he was 

declared „wanted‟ by the American Government and he ran into the 

papal embassy called the Holy See. American officials could not go 

in to arrest him because of the special duty placed on states by 

international law to keep mission premises inviolable. The consent 

of the Pope was sought before the arrest was effected. 

This special duty was honoured also by Britain in March 

1973, where a car exploded and some damage was done to the 

embassy of the Nigerian High Commission in London. Though this 

attack was not directed at the embassy, the British Government 

paid full reparation on its own for the damages. 

Brazil also lived up to its duty of protection of diplomats in 

1968. On September the 4 th, the United States‟ Ambassador in 

Brazil was forced from his car and a note left describing him to be a 

“symbol of exploitation” and demanding the publication of a

355 

manifesto and the release of fifteen political prisoners. The 

Brazilian Government agreed to the demands and the Ambassador 

was released three days later 3. 

However, as elaborately mentioned in the preceding chapter, 

diplomats and diplomatic premises have suffered severe attacks at 

different times and places. Abuse therefore is either against 

internationally protected persons or by them. The emphasis of this 

will be abuses by internationally protected persons. 

Although privileges and immunities are not intended to 

benefit individuals, rather to ensure the efficient performance of 

their functions, very often, internationally protected persons have 

abused their duties under international law by trying to use these 

privileges and immunities for their personal benefit. There are 

several of such cases which shall be dealt with in the next section 

of this chapter. 

What constitutes abuse of privileges and immunities by 

internationally protected persons simply put mean certain activities 

performed by these categories of persons contrary to international 

law principles. 

3 Lord Gore-Booth, op cit p. 200. 

International law provides:

356 

…it is the duty of all persons enjoying such 

privileges and immunities to respect the laws 

and regulations of the receiving state. They 

also have a duty not to interfere in the 

internal affairs of that state. 4 

The above provision by international law does not only put 

caution on internationally protected persons in the performance of 

their functions, but clearly spells out abuse in the event of a 

violation. This provision puts upon the diplomat a duty to honour 

and respect the local laws of the host country and not to tamper 

with any activities that fall within the internal affairs of the host 

state. That is to say, whatsoever the municipal laws of the host 

state prohibit constitutes abuse if done by the Diplomat. The 

Convention on Diplomatic Relations however does not define what 

constitutes the internal affairs of the host state. However, it can be 

assumed that democratic elections within the host state clearly fall 

within its internal affairs, and other activities as may be 

determined by the practice of states. 

International law also provides: 

The premises of the mission must not be 

used in any manner incompatible with the 

functions of the mission as laid down in the 

present convention or by other rules of 

general international law or by a special 

4 Article 41 paragraph 1 of the Vienna Convention on Diplomatic Relations of 1961.

357 

agreements in force between the sending and 

the receiving state 5 

The above provision clearly spells out that for no reason 

should the premises of a mission be used for any reason 

inconsistent with the functions of the mission. Where such 

incompatibility is determined, it constitutes abuse on the part of 

the diplomat. The 1961 convention therefore stipulates in Article 3 

paragraphs 1(a) to (e) the functions of a diplomatic mission to be: 

a. Representing the sending state in the receiving state; 

b. Protecting in the receiving state the interest of the sending 

state and of its nationals, within the limits permitted by 

international law; 

c. Negotiating with the Government of the receiving state; 

d. Ascertaining by all lawful means conditions and 

developments in the receiving state, and reporting thereon to 

the government of the sending state; 

e. Promoting friendly relations between the sending state and 

the receiving state, and developing their economic, cultural 

and scientific relations. 6 

5 Article 41 paragraph 3 of the 1961 convention 

6 Article 3 paragraphs 1(a) to (e). The Functions of a consular post are contained in Article 5 paragraphs (a) 

to (m) of the 1963 convention.

358 

Based on international law, whatever is not compatible with 

the provision above constitutes abuse. That is to say that, at all 

times, the diplomat is either representing his state, or protecting its 

interest, or negotiating on its behalf, or reporting to it or promoting 

friendly relations between it and the host state. Whatever he does 

beyond the confines of international law as relates to his functions 

constitutes abuse. 

The 1961 convention also provides: 

A diplomatic agent shall not in the receiving 

state practice for personal profit any 

professional or commercial activity 7 

The above provision is clear on one thing: that the diplomat 

plays the primary role of representing the sending state. Where he 

breaches this obligation by engaging in the practice of any 

professional or commercial activity for personal profit, this 

constitutes abuse. The provision above has no hint that the 

diplomat has no private life. The diplomat is allowed freedom of 

movement 8. That is to say that a diplomat can take a ride into the 

country or to the beach for a picnic or take a girlfriend to a movie. 

These actions do not violate the provision above. However, the 

private life of a diplomat is permitted for as long as he respects the 

7 Articles 42, and 31 paragraph 1c of the 1961 convention 

8 Article 26 of the 1961 convention.

359 

local laws of the host state. And as mentioned earlier, an act 

against the local law of the host state constitutes abuse. 

International law also provides: 

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 

by a competent judicial authority 9 

Here, a consular officer enjoys protection until he commits a 

grave crime. Though what a grave crime is, has not been defined, 

whatever will be a grave crime would depend on what it is within 

the municipal laws of the host state. Where this is determined in 

relation to a consular officer, it would ipso facto constitute abuse. 

The 1963 convention outlines what the host state can do in this 

case stated in the preceding chapter. 

International officials also enjoy some degree of protection as 

required to facilitate their functions where they act beyond their 

capacity, they enjoy no protection. The Secretary-General and all 

Assistant Secretaries enjoy privileges and immunities as awarded 

diplomatic agent and abuses by them are determined the same way 

as those of a diplomatic agent. 

In conclusion therefore, what constitutes abuse varies from 

person to person and also with degree of protection. Generally 

9 Article 41 paragraph 1 of the 1963 convention.

360 

speaking, every protected person is under a duty to respect the 

laws of the host state. This is because “immunity does not entitle 

diplomats to flout local laws” 10 Abuse is simply a violation of 

international law prescriptions by protected persons. 

7.2 EXTENT AND REASONS FOR ABUSE 

For about 15 years it was fairly generally felt that the 

provisions of the Vienna conventions did indeed provide a fair 

balance between the interests of the sending and host states. But 

in many of the major capitals of the world, it came to be felt that 

diplomats were abusing the privileged status given to their vehicles, 

and in particular, parking illegally, causing obstructions and failing 

to pay traffic fines. 11 This feeling was, of course compounded in a 

country such as the United States, which was also host in New 

York to the United Nations and important specialized agencies. 

By contrast, there was much less public awareness of traffic 

violation by the diplomatic community in London. On the other 

hand, London seemed an attractive avenue for shoplifting and 

other offences. In the period 1974 to mid-1984., there were 546 

occasions on which persons, because of diplomatic immunity 

10 The American journal of international law, vol 79 1985, p. 641 

11 Ibid

361 

avoided arrest or prosecution for alleged serious offences (i.e. 

offences carrying a potential sentence of 6 months imprisonment or 

greater). 12 

The mid-1970s introduced more worrying problems. It 

became clear that certain diplomatic missions held firearms, 

contrary to local laws. 13 Further, it seemed that these firearms were 

being imported through the diplomatic bag. In recent years in 

various western countries, there have also been terrorist incidents, 

in which it was believed that the weapons used were provided from 

diplomatic sources. It was widely thought that certain foreign 

governments were promoting state terrorism against dissident 

exiles, through the involvement of their embassies in the country 

concerned. 

Normal diplomatic communication with the Libyan embassy 

in London was complicated by the fact that (as in other western 

capitals) so-called revolutionary committees had taken over the 

embassy, renamed it the Libyan people‟s Bureau and refused to 

designate a person in charge of the mission. In February 1980, 

12 Ibid 

13 Ibid

362 

further internal upheavals occurred in the Libyan people‟s Bureau 

in London, giving rise to further diplomatic problems. 14 

On April the 17 th, 1984, an orderly demonstration was held 

by Libyan opponents of colonel Qaddafi‟s government, on the 

pavement in St. James‟s square, London, opposite the peoples‟ 

bureau. Both the foreign office London and the British Ambassador 

in Tripoli had been warned the day before that if the demonstration 

were to be allowed to go ahead, Libya “would not be responsible for 

its consequences”. Shots were fired from the windows of the 

Bureau, killing woman police constable Fletcher, who was on duty 

in the square. 15 

The action by Libya clearly contravened international law. The 

possession of firearms within mission premises clearly constitutes 

abuse as this breaches Article 41 (3) of the 1961 convention 16 

which forbids the using of mission premises in any manner 

inconsistent or incompatible with the functions of the mission. As 

mentioned in one of the preceding chapters, international law most 

times is the initiator of its own problems. The question of 

inviolability of diplomatic archives creates a problem of effectively 

checking the importation of firearms or ammunition through the 

14 Ibid 

15 Ibid

363 

diplomatic bag. This can be seen as a worrying problem since illegal 

use of diplomatic premises may also not be effectively checked. 

Here the efficiency of international law is impeded. Adherence 

to Article 41(3) of the 1961 convention is left at the mercy of the 

diplomat. It becomes more a question of willful adherence than 

compulsion which is a strong attribute of any law. A 

recommendation in this direction is however reserved for the 

concluding chapter of this work. 

The question of abuse has not been peculiar to Libya. A few 

months later, on July 5, 1984, another abuse was recorded in 

London. This time though international law was violated by 

searching the diplomatic bag, the illegality paid off. Nigeria‟s one 

time minister of transport was discovered neatly packaged in a 

crate (with an Israeli) addressed: 

To the Ministry of External Affairs, Federal 

Republic of Nigeria, Lagos, from the High 

Commissioner, London. 17 

The two actions: the packaging of the ex-minister and search 

by British Authorities were both illegal based on international law. 

This did not however stop the British government from declaring 

some Nigerian diplomats persona non grata. In the same vein; 

16 Article 4, paragraph 3 of the 1961 convention 

17 African Concord, 2 March, 1992, P. 22

364 

Nigeria retaliated by declaiming an equal number of British 

diplomats persona non grata. 

There was another incidence of abuse when customs 

Authorities in Rome realized that a large diplomatic bag destined 

for Cairo was emitting means. It was seized and opened and found 

to contain a drugged Israeli who was kidnapped. Here again the 

abuse resulted to persona non grata declared some members of the 

Egyptian Embassy. 18 

It can be seen that though the abuses in the 2 cases above 

were both by and against the diplomats, the abuse by the 

diplomats necessitated the one against them. 

In another incidence, the Iraqi embassy in Pakistan was 

converted to a place for storage of imported weapons. In breach of 

international law, the Pakistani Government searched the embassy 

after being refused permission to search. Firearms were indeed 

discovered. This abuse by the diplomats resulted to persona non 

grata declared them. 

Various reasons can be said to be responsible for the abuse of 

privileges and immunities granted to diplomatic agents and mission 

premises by and against these diplomats. Some of the very common 

18 Satow, E., Op. Cit P. 177

365 

reasons can be greed, patriotism, terrorism and unfriendliness 

between the sending and host states. 

In line with the above, recently the US embassies in Kenya 

and Tanzania were bombed on August the 7 th 1998 claiming 253 

lives. This terrorist action against these US embassies disregards 

the international law provision that mission premises are 

inviolable. Though the host states could not exactly be blamed for 

this bombings partly because most of the dead persons were 

nationals of the host states, it is no doubt an abuse of the US 

mission premises. Equally worrisome is whether Kenya and 

Tanzania could have been able to protect these embassies due to 

weak security efficiency. International law has not fully looked at 

the inabilities of weaker nations of the world when it comes to 

protecting diplomatic premises when attacked by sophisticated 

groups like terrorists. The words “all; appropriate steps” as used in 

Article 22 of the 1961 Convention appear apt. However this is very 

relative to individual states. The recent attacks on the United 

States of America show how serious this problem is, and how 

vulnerable small and big nations can both be. 

Another clear case of abuse of diplomatic privileges and 

immunities took place on the night of 17 December 1996, where

366 

the Japanese Ambassador in Lima, Peru, hosted an elaborate party 

to commemorate the sixty-third birthday of Emperor Akihito of 

Japan. Japan, a nation comprising several Islands in the pacific 

ocean and Peru a state situated on the pacific coast of the South 

American Continent appear to have strong cultural and political 

links, Peruvian President Alberto Fiyimori is the son of Japanese 

immigrants. The guests present numbered over 600 and included II 

diplomatic envoys. Shortly after the banquet started several 

members of the insurgent Tupac Amaru group attacked the 

residence, over powered the guards and took the entire assemblage 

hostage 19. 

Subsequently communications were established with the 

rebels by the government of Peru through intermediaries. The 

rebels gradually started releasing the majority of the hostages and 

held into 74 persons including the II ambassadors for whose safety 

they demanded that the Peruvian authorities should release 440 

previously incarcerated Tupac Amaru Guerrillas. 20 However, the 

Peruvian government refused to succumb and eventually freed the 

hostages with minimal casualties. These events in Peru constitute a 

19 The Guardian, Tuesday January 14, 1977 P. 9; This Day January 7 1997 P. 18; Time the Weekly News 

Magazine, December 30 1996 to January 6 1997 Vol No.27 P. 86. 

20 The Guardian, 18 February 1997 P. 9

367 

contemporary and alarming trend in international terrorist attacks 

on diplomats. 

There is also the recent case of the arrest in 2002 of a 

member of the Nigerian National Assembly in Saudi Arabia who 

had a diplomatic passport. 

Another case of abuse was recorded in 1929 where some 

French officials forced their way into the Soviet embassy in Paris 

after allegations, that persons were being detained and might be 

executed therein, it was argued that the intervention was 

consistent with international law, „because no civilized state could 

permit a foreign legation to be made a place of imprisonment or, a 

fortiori, a place of execution.‟ 21 

Also in the Sun Yat-Sen case, there was a clear case of abuse 

where in 1896, Sun Yat Sen, a Chinese National and Political 

Refugee, was detained as a prisoner in the Chinese Legation at 

London, with the apparent intention of forcibly transporting him to 

China. 22 

Some diplomats abuse the privileged status granted 

diplomatic bags, by smuggling things in and out of the host state. 

This is done more out of greed than not. 

21 as cited by Madaki, A. S. in Post-graduate Thesis titled “The Legal Implications of the Violation of 

premises of Diplomatic Missions, “August, 1992 P. 17. 

22 Ibid

368 

In 1953 Edwardo de Arteaga, Uruguayan Minister to Belgium 

was fined for trying to smuggle $38,595 worth of diamonds out of 

England. He pleaded guilty but he said he had agreed to carry the 

diamonds as a favour for a friend and was to receive no pay. On 

another occasion customs officials reported a large amount of 

Egyptian and American currency and jewels seized from Don Luis 

de Almagro, Cuban Minister to Egypt, Lebanon and Syria, as he 

prepared to board a plane for Beirut at the Cairo Airport. 23 

In 1958, officials in Lebanon inspected a car driver by a 

Belgian consul-General who was stationed in Syria and found, 

according to press reports, 33 submachine guns, 28 pistols, 32 

revolvers, 16 hand grenades, 1,800 rounds of machine gun 

ammunition, 1,500 rounds of other ammunition, several time 

bombs, and some demolition equipment. 24 

There was also the case of a military attaché to a foreign 

embassy in Israel who engaged in criminal violation of the customs 

and Exercise laws by smuggling in some dozen bales of cloth and 

selling them to a non-diplomat. 25 

23 

Wilson, C. E. Diplomatic Privileges and Immunities (Arizona: The University of Arizona Press; 1967) P. 

136. 

24 

Ibid P. 137. 

25 

International Law Reports, vol 32; E. Lauterpact, (London: Butterworths; 1966) P. 307

369 

There was also an abuse which resulted to the Ranollo case of 

1946, where the chauffeur of the Secretary General was prosecuted 

for exceeding the legal speed limit. 26 

Abuse of immunities and privileges by diplomats usually has 

adverse effects on the relationship between the two countries 

involved. When the abuse is one of terrorism as in the Libyan case 

in London, it can lead to a total break down of diplomatic relations 

between the two countries as was the case between Libya and 

Britain following the 1984 incidence. 

Whichever internationally protected persons are involved, 

abuse clearly breaches international law and in one way or the 

other creates some degree of hostilities between the persons 

protected and the host state. These hostilities inevitably extend to 

the sending states or international organisations as the case may 

be. 

7.3 DEALING WITH ABUSE 

International law and even municipal laws of some states 

have adequately handled the question of abuse of privileges and 

immunities internationally protected persons. For instance, in 1951 

the Netherlands enacted a law which forbade: 

26 Anger, B. Op. Cit. p.83.

370 

offending, damaging, injury by word or act or 

manner, the ambassadors, resident agents… 

or others, having the quality of public 

ministers; or to do them public injury or 

insult, directly or indirectly, in any fashion or 

manner whatever, in their own persons…, 

their domestic servants…, under penalty or 

being corporally punished as violators of the 

laws of the nations and disturbers of public 

peace 27 

In the same vein, the English criminal law provides: 

Everyone is guilty of a misdemeanor who, by 

force or personal restraint, violates any 

privilege conferred upon the diplomatic 

representative of a foreign country, or the 

person of a servant of any such 

representative, is arrested or imprisoned 28 

The Italian Criminal Code also states that at least, 20 years 

imprisonment is the punishment for any attempt to assassinate the 

Head of a mission while life imprisonment is the punishment in 

case of death. 

Again, we are living witnesses to new waves of crime, at least 

in intensity and proportion, which are capable of threatening 

international peace and security. Murder, assassinations with 

political underpinnings, terrorism, international trafficking in 

narcotics, etc are commonplace. Interestingly, in recognition of the 

reality, the convention on the Prevention and Punishment of 

27 Nascimento e Silva, op cit P. 92.

371 

Crimes Against Internationally Protected Persons, Including 

Diplomatic Agents, 1973, punishes inter alia the international 

commission of murder kidnapping or other attack upon the person 

or liberty of internationally protected persons. 

The Question of handling abuses of privileges and immunities 

by internationally protected persons remains a very delicate one. 

States, especially the host states have to be careful how they deal 

with offending diplomats because of the importance of reciprocity. 

These immunities are given on the understanding that they will be 

reciprocally accorded, and their infringement by a state will lead to 

protest by the diplomatic body resident there in, and would 

prejudicially affect its own representation abroad. International 

organisation do not necessarily have this fear, but since their 

officials carry out their functions in state, a careful handling 

situation is also required to create greater efficiency by the official. 

International law provides: 

28 Ibid. 

29 Article 31 paragraph 4 of the 1961 convention. 

The immunity of a diplomatic agent from the 

jurisdiction of the receiving state does not 

exempt him from the jurisdiction of the 

sending state 29.

372 

The above provision identifies the great role the sending state 

can play in checking abuses since the immunity of the diplomat 

does not exempt him from the jurisdiction of the sending state. 

However in cases where the sending state is a party to the abuse as 

was in the Libyan case, it cannot be relied upon to check the 

abuse. Sending states who are not party to the abuse can also 

instill discipline in the offending diplomat. 

For instance, Don Luis F. de Almagro was dismissed from the 

service, though he reportedly said he was not aware that it was 

illegal for him to take out cash and jewels. 30 Two Latin American 

Ambassadors were stripped of their immunity and sentenced for 

using the diplomatic pouch to smuggle heroin into the United 

States. 31 

The sending state can also waive the immunity of the 

diplomat so as to be prosecuted. This however depends on the 

relationship between the sending and host states. In the Umaru 

Dikko case and several others, the sending state refused to waive 

immunities of the offending diplomats. The only choice available to 

the host state is to declare the diplomats persona non grata or 

30 Wilson C. E.; op cit P. 136. 

31 Ibid P. 137.

373 

terminate diplomatic relations as was the case between Britain and 

Libya in 1984. 

In relation to consuls, arrest and detention is lawful where 

the abuse is one of grave crime, and where a competent judicial 

Authority so authorizes. Where the abuse is not one of grave crime, 

the host state can also declare such consul persona non grata. 32 

In relation to international officials the Secretary General can waive 

immunities for purposes of prosecution in the event of abuse as 

was in the Ranollo case of 1946. The security council of the United 

Nations can also waive the immunity of the Secretary – General. 

Also to check abuse over the years, states have made many 

rules especially in relation to the abuse of the immunity accorded 

diplomatic bags. The Russians like the Americans and some other 

states have included in their customs regulations such ruling as 

the one in Article 2 of Order No. 110 of October 26 1948, which 

provides that in “exceptional circumstances diplomatic baggage 

may be inspected by special order of the Central Customs 

Administration. 33 

In Nigeria, specifically in 1973, the Nigeria Federal Military 

Government felt that there was a need to effect a change of her 

32 Article 23 of the 1963 convention 

33 American Journal of international law, vol 79 (1985) P. 647

374 

currency from Pound Sterling to Naira. The essence of carrying out 

this exercise was to check the trafficking of Nigerian currency. For 

these reasons a procedure was suggested to open and inspect 

official correspondence and diplomatic or consular pouches. This 

generated much protest and condemnation among foreign missions 

accredited to Lagos. 

Article 27 34 provides for inviolability of the diplomatic bag. 

The essence of this inviolability is to protect diplomatic materials 

but not materials that do not cone under this category. The Legal 

Adviser to the Foreign and Common Wealth Office took the view 

that electronic scanning is not unlawful under the 1961 

convention. 35 Indeed there is no way of ascertaining that a bag 

contains illicit materials save by examination. In this vein, 

scanning or other remote examination by equipment or dogs is 

argued not to be unlawful under Article 27. 36 Sir John Freeland 

noted that, Article 27 requires only that the bag not be “opened or 

detained” and does not accord full inviolability. 37 

This argument by Freeland does not take cognizance of the 

fact that the essence of not detaining or opening the bag is to 

34 Article 27 of the 1961 convention. 

35 American Journal of international law, vol 79 (1985) P. 647 

36 Loc. Cit. 

37 Ibid.

375 

prevent knowledge of its contents. Electronic scanning or sniffing 

by dogs will provide such knowledge. This will not conform to the 

intention of Article 27. 

All the arguments above are justifications sought to violate 

diplomatic bags, one of the most successful ways through which 

abuses are carried out. 

Sometimes the consequences of abuse of privileges and 

immunities by a diplomatic agent range from stern warning to 

declaration of persona non grata. For instance, when in 1587, a 

French Ambassador to England conspired against the life of Queen 

Elizabeth; he was simply warned not to commit a similar offence 

again. 38 However, in 1583-84 when the Spanish Ambassador, 

Mendoza was implicated in the plot against Queen Elizabeth, he 

was summoned before the council and given a fortnight to leave the 

country. 39 Similarly, when in 1654, De Bass, a French Ambassador 

in England conspired against the life of Cromwell, he was ordered 

to leave the country within twenty-four hours. 40 

It is pertinent to note that a diplomatic agent may abuse his 

immunities when he behaves in such a way that causes public 

disorder in the host state either as a result of madness, the local 

38 Nascimento e Silva, op cit pp. 120-121. 

39 Ibid. 

40 Ibid.

376 

authorities influence. When that happens, the local authorities are 

entitled to use coercion until he returns to normalcy and to prevent 

a repeat performance. For instance, in 1947, at the Brazilian 

Embassy in Moscow, a secretary at the Embassy had to be tied by 

the local authority in order to prevent him from damaging the 

property of a hotel. 41 The protection which was later lodged by the 

Brazillian Government was not entertained for being unjustified. 

On a general assessment, the question of abuse by protected 

persons has been mild when compared with the number of 

diplomatic missions all over the world. Though from the viewpoint 

of the author abuse must have increased in recent times due to the 

divergent pressures in the international system, there have been 

more adherence to international law than violations. If studied in 

comparism, the incidence of abuse will certainly be out-weighted by 

adherence. 

41 Ibid P. 93.

377 

CHAPTER EIGHT 

SUMMARY AND CONCLUSIONS 

8.1 OBSERVATIONS AND RECOMMENDATIONS 

As man saw the impossibility to survive on his own politically 

and economically, there arose the need for him to enter into 

friendly relations with his neighbours in other to meet some of his 

needs. This relationship is what is referred to as diplomacy because 

it entails negotiation, which is intended to sustain this relationship. 

A conscious attempt has been made in this work to trace the 

development of diplomacy from antiquity. It has been traced that 

diplomacy is as old as mankind, and that the ancient man was 

involved in diplomatic activities, since they also negotiated to either 

initiate or end wars with their neighbours. These people even at 

that time had simple rules to guide them. Diplomacy at this stage 

was ad hoc in nature, while contemporary diplomatic and consular 

relationship, is largely permanent in practice. 

This work also examines the sources of diplomatic and 

consular law as constituting the general sources of international 

law. This is because diplomatic and consular law is an aspect of 

international law. It is clear from the discussion in the work that

378 

the sources of diplomatic and consular law are the major ones 

creating its rules, these are treaties and customs. 

Article 38 of the statute of the ICJ has enlisted other sources, 

which include general principles of law recognized by civilized 

nations, judicial decisions and teachings of the most highly 

qualified publicists. 

The general principles of law are however meant to prevent 

the court from not reaching a decision because of the absence of 

existing treaties or customs. These principles are applied with 

caution lest the courts be accused of unauthorized exercise of 

international legislation. 

It becomes also apparent that judicial decisions are listed as 

subsidiary sources owing to the fact that judicial precedent does 

not operate at the level of international law, as the decision of the 

ICJ has no binding force except between the parties and in respect 

of that particular case. Teachings of publicists are the evidence of 

what the law is as judicial decisions and writings of publicists are 

both valuable supplements to the major sources of international 

law, as vital branch of which diplomatic and consular law is 1. 

1 Article 15 of the Statute of the ICJ

379 

Municipal laws of Nigeria were also discussed as a source of 

diplomatic and consular law. It must be asserted that it does not 

have direct effect on the creation of norms of international law. 

There is however no doubt that the actualization of international 

legal norms is within the municipal set up and to that extent, 

municipal law determines the force of international law within the 

territory of a state. Such law and court decisions could therefore 

represent a state‟s position with regards to international law. 

Section 12(1) of the 1999 Constitution provides in the affirmative 

that no treaty between the Federal Republic of Nigeria and any 

other country shall have the force of law except to the extent to 

which the National Assembly has enacted any such treaty into law. 

The work also attempts a discussion of internationally 

protected persons and their scope of protection. From the 

discussion it is observed that defining “internationally protected 

persons” in the real sense of it has been a contention in 

international law. More so the disparity in the degree of protection 

enjoyed by internationally protected persons cannot be de- 

emphasized. While some enjoy “absolute” immunity to the extent 

enjoyed by diplomatic agents, others enjoy functional immunity, 

which arises out of treaties or agreements.

380 

The Vienna Convention on Diplomatic relations 1961 is 

reputed to be undoubtedly the most important document on the 

subject of diplomatic relations that exists, being a landmark of the 

highest significance in the codification of international law. 2 This is 

perhaps same of the Vienna Convention on Consular Relations 

1963 as it relates to consular relations. The view is equally held 

that the 1961 convention has held the overwhelming majority of the 

members of the United Nations as representing an international 

codification of modern diplomatic law. 3 

In spite of the soundness of the provisions of this Convention, 

it is still not sacrosanct. For instance as regards the inviolability of 

premises of the mission 4, the convention contains no provision 

relating to cases of emergency. This is however taken care of in 

relation to the consular post. 5 In relation to diplomatic premises, 

that the consent of the head of the mission must be sought before 

the authorities of the receiving state can enter them, appears to be 

a problem. What if there arises a situation in which the premises 

present a pressing danger to the surrounding district by reason of 

2 Nascimento, op cit p. 30 

3 Feltham, R. G. Diplomatic handbook (UK: Longman group Ltd: 1970) p.38 

4 Article 22 of the Vienna Convention on Diplomatic Relations 1961 

5 Article 31(2) of the Vienna Convention on Consular Relations 1963

381 

fire breaking out or used as a firing point or in a case of use of the 

premises by staff of the mission for unlawful purposes? In this kind 

of situation, is the consent of the head of the mission necessary 

before agents of the receiving state can enter the premises? If they 

enter the premises without consent will a defense of humanitarian 

intervention avail them? 

The essence of diplomacy is to preserve lives and property, 

not to destroy them. The convention on Diplomatic relations makes 

it clear that the receiving state must 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 6. This provision makes it clear also that 

this duty placed on the receiving state is a special one 7. This 

special duty placed on the receiving state is inhibited by the 

provision that: 

The premises of the mission shall be 

inviolable. The agents of the receiving state 

may not enter them, except with the consent 

of the head of the mission 8. 

In an ideal situation, the provision above appears workable. 

But even then it is contradictory. Diplomatic law on the one hand 

6 Article 22 (2) Vienna Convention on Diplomatic Relations, 1961. 

7 Article 22 (2) Vienna Convention on Diplomatic Relations, 1961. 

8 Article 22 (1) Vienna Convention on Diplomatic Relations, 1961.

382 

places a duty on the receiving state to protect mission premises. On 

the other hand the receiving state has no access to the same 

premises it is supposed to protect. The words “all appropriate 

steps” have not been defined by the 1961 convention on diplomatic 

relations. What is appropriate must therefore be determined based 

on the peculiar facts of a given case. 

It is therefore the submission here that in emergency 

situations such as the outbreak of fire requiring prompt action, the 

receiving state must act in such a manner as to save lives and 

property, though under the situation, effort must be made to 

maintain the respect due diplomatic premises and maintain its 

peace and dignity. In this circumstance, the consent of the Head of 

the mission may be inferred. He must however be notified as soon 

as possible of the action of the receiving state as peculiarly 

intended to save lives and property. It is believed that the whole 

essence of preventing any disturbance of the peace of the mission 

or impairment of its dignity is more relevant in emergency 

situations. 

There is also the issue of inviolability of the diplomatic agent. 9 

Again the Convention makes no provision for actions in cases of 

9 Article 29 of the 1961 Convention

383 

emergency. For instance what happens if a drunken diplomat pulls 

a gun in a crowded place? Should he be allowed to harm people on 

grounds of inviolability? Should the gun not be seized to avert 

imminent danger to the people? What happens if two diplomats are 

caught up in a scuffle? Should reasonable force not be used to 

separate them? Will this amount to a violation of the diplomat? 

What if a diplomatic agent is mercilessly beating an ordinary citizen 

of the receiving state? Will it be a violation of the diplomat‟s 

inviolability to physically restrain him from further injury to the 

victim? Will self-defense be a permissible exception? 

Like mentioned earlier, the whole essence of diplomacy is to 

save lives and property. No civilized society can watch its nationals 

face imminent danger without taking appropriate steps to rescue 

them. The right to life of the individual is a fundamental right in 

every legal system in the world, and accordingly a vital objective of 

the United Nations. 

Human rights can generally be defined as those rights, which 

are inherent in our nature and without which we cannot live as 

human beings. In Ransome Kuti V. Attorney General of the 

Federation 10, Kayode JSC defines it thus: 

10 (1985) 2 NWLR 211 at 230.

384 

… It is a right which stands above the 

ordinary laws of the land which in fact is 

antecedent to political society itself. it is a 

primary condition to a civilized existence… 

and what has been done by our 

constitutions since independence… it s to 

have these rights enshrined in the 

constitution so that the rights could be 

immutable to the extent of non-immutability 

of the constitution itself. 

The preamble of the universal declaration of human rights adopted 

on 10 December 1948 emphasizes that recognition of the inherent 

dignity and of the equal and inalienable rights of all members of the 

human family is the foundation of freedom, justice and peace in the 

world. 11 the question of human rights is so central to the 

international system that they cannot be derogated even in times of 

war or other public emergency threatening the nation. In the words 

of shaw: 

Certain rights may not be derogated from in 

various human rights instruments even in 

times of war or other public emergency 

threatening the nation 12. 

In the same vein the European convention states that these 

rights include the right to life (except in cases resulting from lawful 

11 Shaw, N. S. International Law 4 th ed. Cambridge: Cambridge University Press; 2002, P.196. 

12 Ibid. P. 203.

385 

acts of war), the prohibition on torture and slavery and non- 

retroactivity of criminal offences 13. In the case of the American 

convention 14, the following rights are non-derogable: the rights to 

judicial personality, life and human treatment, freedom from 

slavery, freedom of conscience and religion, rights of the family, to 

a name of the child, nationality and participation in government. 

The 1999 Nigerian constitution provides for the right to life, 15 

the right to dignity of the human person, 16 the right to personal 

liberty, 17 the right to fair hearing 18, the right to private and family 

life, 19 the right to freedom of thought, conscience and religion 20, the 

right to peaceful assembly and association 21, the right to freedom 

of movement 22, the right to freedom from discrimination 23, etc. 

From our discussion so far, the right to life and respect for 

human dignity has received expression in international law. 

Therefore a diplomatic agent who brandishes a gun in a market 

place or anywhere in the territory of the receiving state attempts to 

13 The European Convention on Human Rights, Articles 2,3,4 (1) and 7. 

14 The American Convention on Human Rights, Article 27. 

15 Section 33 of the 1999 Constitution. 








23 Section 42.

386 

destroy life or property or both. The diplomatic agent is not 

supposed to flout local laws. 24 In a more relaxed situation, the 

receiving state can declare him persona non grata (a diplomatic 

agent whose conduct is unacceptable to the receiving state). But in 

an emergency, no responsible state will watch her citizens face 

imminent danger without coming to their rescue. It is submitted 

here that the authorities of the receiving state can use as much 

force as is needed to rescue her citizens. This force must be 

commensurate with the opposing force. The respect due a 

diplomatic agent must be accorded him even when force is being 

used. The would – be victims can also defend themselves against 

the armed diplomatic agent. Though it will be wise to make sure 

that the threat of the diplomatic agent is instant, overwhelming, 

leaving no choice of means or room for deliberation. The action in 

self-defence must be intended to free them and no further, so that 

the diplomat‟s dignity is not excessively impaired. 

Also the severe curtailment of the privileges and immunities 

of persons who are „nationals of or permanently resident‟ in the 

receiving state raises other questions. What happens in the case of 

dual nationality? Furthermore should the wife of a diplomat suffer 

24 Article 41 (1) of the 1961 Convention on Diplomatic Relations.

387 

restriction merely on account of nationality or permanent 

residence? Will this not undermine the privileges and immunities of 

her husband? 

It is the submission here that the wife of a diplomatic agent 

should be accorded the immunity due her husband. A failure to do 

this undermines the immunity of her husband. The diplomat 

requires an environment with minimum pressure to be effective. He 

cannot do very much if his wife is arrested under the laws of the 

receiving state. This will affect his stability and impair his 

performance and dignity. So whether the wife is a national or of 

permanent residence in the receiving state, she should be fully 

protected knowing that her immunity arises because of her 

husbands own. 

The issue of dual nationality presents no problems here. If 

anything, it solves the problem of the immunity of the wife of a 

diplomatic agent who may still enjoy immunity even if the receiving 

state fails to accord her because she is a national or of permanent 

residence in her territory. The fact that she has another nationality 

separate from where her husband is serving is good ground for her 

to enjoy immunity even if she is also a national or of permanent 

residence in the receiving state. She could claim, and it is the

388 

submission here, that she has another nationality and for purposes 

of her privileges and immunity lean on her other nationality, so as 

to enjoy these privileges and immunities in the receiving state 

where she may have also been a national or of permanent 

residence. 

In respect of the diplomatic bag, the convention provides that 

it shall neither be opened nor detained. 25 The convention says 

nothing about the acceptable size of the bag. If it did, it would have 

been easy to know what is in excess of a diplomatic bag. Where this 

excess exists, scanning or sniffing by trained dogs would have been 

an effective way to prevent the introduction into the diplomatic 

premises of items not directly relevant to the functions of the 

mission. As it is, it is impossible to stop a diplomatic bag even if it 

contains items the importation or exportation of which is prohibited 

in the receiving state. But if for any reason this nature of 

diplomatic bag is searched, will the discovery of these items legalize 

the search? 

The Convention on Diplomatic Relations, 1961 provides: 

25 Article 27(3) of the 1961 Convention 

The packages constituting the diplomatic 

bag must bear visible external marks of their 

character and may contain only diplomatic

389 

documents or articles intended for official 

use. 26 

Where a diplomatic bag does not follow the stipulation above, 

some scholars submit that electronic scanning or sniffing by dogs 

be implored. This prohibits the use of the diplomatic bag from 

being used in such a manner that negates the essence of 

diplomatic communication and consequently the essence of 

diplomacy, such as was seen in the Umaru Dikko case of 1984. The 

case involving the Libyan Peoples Bureau same year, is also worthy 

of mention. 

Specifically in the case involving Libyan Peoples Bureau, two 

main grounds have been advanced for suggesting that one does not 

have to treat as mandatory the provision in Article 27 (3) of the 

convention that “the diplomatic bag shall not be opened or 

detained”. The first is that the inviolability of the bag is to protect 

diplomatic materials; but not materials that do not fall in that 

category and indeed constitute an abuse of the diplomatic bag. The 

second is that abuse by members of a mission of the function 

protected under the convention entails forfeiture of the protection 

of the convention. The travaux preparatoires of the convention are 

not quite as categorical on these related points as they are on the 

26 Article 27 (4).

390 

lack of any exception allowing uninvited entry onto diplomatic 

premises. But they are still clear enough, and the policy 

considerations are the same. There are no ways of ascertaining that 

a bag contains illicit materials save by examination; and that 

possibility gives too much opportunity to a receiving state to 

interfere with the proper flow of diplomatic materials 27. Even those 

states that have suffered most in recent years from the abusive use 

of the diplomatic bag that has undoubtedly occurred show little 

enthusiasm for a departure from the prohibition of search in Article 

27(3). 

The Legal Adviser to the Foreign and commonwealth Office 

took the view, on balance, that electronic scanning is not unlawful 

under the Convention 28. 

Acknowledging that some regard scanning as “constructive 

opening,” Sir John Freeland noted that 29 Article 27 of the 

convention requires only that the bag not be “opened or detained” 

and does not accord full inviolability. In the view of the 

Government, scanning or other remote examination by equipment 

or dogs would not be unlawful under Article 27. 

27 

Rosalyn Higgins, Op. Cit. P.647 

28 

Ibid. 

29 

Foreign Affairs Committee Report, Para.29

391 

However as stated earlier in this work, electronic scanning or 

sniffing by dogs will expose the contents therein. This will frustrate 

the intention of Article27. This work recommends an amendment of 

Article 27 to cover a definition of the size of a diplomatic bag. It is 

believed that the size of a diplomatic can create sufficient grounds 

for suspicion of its contents. Where such suspicion exists electronic 

scanning or sniffing by dogs is recommended. This will help to 

check the use of diplomatic bags for purposes prohibited by 


International law makes a feeble effort to regulate the conduct 

of the diplomat. The 1961 convention provides that it is the duty of 

all those enjoying privileges and immunities to respect the laws and 

regulations of the receiving state. They are also not to interfere in 

the internal affairs of the state. 30 The convention does not provide 

for any punishment due to any diplomat who violates this 

injunction. This is of cause the essence of the immunity. This 

however leaves the compliance to this provision at the mercy of the 

diplomat. It is nothing but a passionate appeal. 

30 Article 41(1)

392 

Again, the premises of the mission should not be used in any 

manner incompatible with the functions of the mission. 31 This is 

also a passionate appeal because the diplomatic bag, which cannot 

be opened or searched, is one of the means by which even firearms 

can be introduced in the diplomatic premises and used in a 

manner incompatible with the functions of the mission. 

No doubt the various provisions of the conventions covering 

internationally protected persons are largely adequate. This is more 

so for those enjoying functional immunity. However there exist 

conundrums in these conventions that must be addressed. 

The Convention on Diplomatic Relations provides that the 

immunity of a diplomatic agent from the jurisdiction of the 

receiving state does not exempt him from the jurisdiction of the 

sending state. 32 This connotes that the criminal immunity among 

others that the diplomatic agent enjoys in the receiving state 33 does 

not extend to the sending state. The convention can therefore place 

a special duty on the sending state to punish their diplomatic 

agents where a grave crime has been committed. 

31 Article 41(3) 

32 Article 31(4) 

33 Article 31 (1)

393 

Also, reliance on customary international law alone to resolve 

the problem will not suffice. The blatant abuses and violations of 

diplomatic privileges and immunities 34 coupled with the alarming 

wave of terrorism and illicit trafficking in drugs, point to the 

necessity to revise the convention with a view to its appropriate 

location within the matrix of diplomatic praxis and contemporary 

realities. Such revision in order to be worthwhile, must reckon 

with, and remedy the conundrums, which have been discussed in 

this work. 

At the end of the day, terroristic abuse of diplomatic status 

can be controlled neither by moving demonstrations away from 

embassies nor by trying to amend the Vienna Convention. What is 

needed is close coordination between the various parts of 

Government, and international security cooperation. 

Governments must keep themselves more fully informed than they 

have sometimes appeared to be in the past, and should not, for the 

sake of promoting trade or other reasons, seek to accommodate 

those who are reluctant to conform to the requirements of the 

Vienna Convention. Above all, those remedies available for abuse in 

the Convention especially the power to limit the size of the mission, 

34 McClanahan, G. V. op. cit p.144

394 

to declare a diplomat persona non grata-should be used with 

firmness and vigor, and not just reserved for matters related to 

espionage. 

As is so often the case, legal means are at hand; but they 

need to be matched by political will. 

Encouragingly, contemporary diplomatic and consular 

practice no longer allows protected persons to live under the cloak 

of diplomatic or consular immunity and perform acts that are 

offensive to the international community. Hostage taking, torture, 

genocide, murder, trafficking in narcotics, etc are some of these 

acts. Any member of the international community who has custody 

of the offender can prosecute anyone connected to any of these 

acts, based on the universality principle of exercising jurisdiction. 

The on-going United Nations War crime trials where some 

internationally protected persons are also being tried explain this 

point further. 

The work recommends a review of Article 27 of the 

Vienna Convention on Diplomatic Relations, to incorporate a 

definition of a diplomatic bag. This will make it easier to 

determine by the size of the bag if it carries items that appear 

suspicious. This suspicion should be basis for the scanning of the

395 

bag using electronic means, and sniffing by dogs, to determine the 

legality of the items the bag is carrying. 

8.2 CONTRIBUTION TO KNOWLEDGE 

This work has identified certain gaps, loose ends or 

conundrums in the law regulating diplomatic and consular 

practice in our world today. These gaps or conundrums include 

some ambiguous provisions of these conventions such as the 

privileges and immunities of diplomatic agents. A diplomat enjoys 

absolute immunity from the criminal jurisdiction of the receiving 

state as provided for in Article 31 of the Vienna Convention on 

Diplomatic Relations 1961, without taking cognizance of emergency 

situations, such as when a diplomat threatens the life of a national 

of a receiving state with a gun, should he still enjoy this immunity? 

Also, diplomatic premises cannot be entered into by authorities of 

the receiving state except with the consent of the head of the 

mission. This again fails to look at such emergency situations such 

as the outbreak of fire where such consent cannot be promptly 

given. 

The 1961 convention on Diplomatic Relations also provides 

that the diplomatic premises should not be used in any manner

396 

incompatible with the functions of the mission. This however 

suffers inconsistency as Article 27 of the same convention prohibits 

the opening or detaining of a diplomatic bag, one of the ways even 

fire – arms can be brought into mission premises and used in a 

manner inconsistent with the functions of the mission. 

These gaps are responsible for abuse of privileges and 

immunities. This work has specifically been able to fill these gaps 

and has shown that the diplomatic bag, one of the easiest ways to 

introduce even fire arms in the diplomatic premises, and often has 

been, needs to have its size defined. This work has shown that this 

definition helps to check abuse which has become prevalent in our 

world today. This effort no doubt contributes to knowledge. 

8.3 AREAS FOR FURTHER RESEARCH 

As earlier discussed, this research work has succeeded in 

identifying the existing gaps in diplomatic and consular law and 

has attempted to fill them. The reactions of other scholars arising 

from findings in this work are other areas that require further 

research. 

Again, the problems of the smaller nations of the world 

especially those of Africa, serve as a hindrance to Africa‟s

397 

efficiency in world affairs. Most of these problems are domestic 

but no doubt caused by Africa‟s peculiar colonial experience. 

Some of the provisions of diplomatic and consular law have not 

taken cognizance of Africa‟s reality and by so doing places 

obligations on Africa that are not achievable. To make Africa 

more relevant in diplomatic and consular practice, the rest of the 

world must sincerely see the urgency to contribute to the socio- 

economic development of this continent. This is without a shadow 

of doubt an area for further research.

Journals: 

398 

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Shaw, M.N. International Law (4 thed.) Cambridge: 

Cambridge University Press; 2002. 1288p. 

Sorensen, M. Manual of Public International Law New 

York: St. Martin‟s Press; 1968. 452p. 

Starke, J.G. Introduction to International Law London: 

Butterworths; 1977. 318p. 

Tunkin, G. I. Theory of International law London: 

George Allen & Unwin Ltd.; 1972, 215p. 

Vernon, R Multinational Business and National 

Economic Goals Hamonds worth Middlesex: 

Penguin Books; 1975. 323p. 

Walker, D.M. Oxford Companion to Law London: Clarendon Press; 

1980. 263p. 

Wallace, R.M. International Law London: Sweet and Maxwell; 1986. 

286p. 

Wilson, C.E. Diplomatic Privileges and Immunities Arizona: The 

University of Arizona Press; 1967. 216p.

402 

Laws/statutes/legal instruments 

Charter of the United Nations 1945 

Convention on Privileges and Immunities of the United 

Nations 1946. 

Convention on the Prevention and punishment of Crimes against 

Internationally Protected persons, Including Diplomatic Agents 

1973. 

Convention on Special Missions 1969. 

Diplomatic Privileges and Immunity Act, CAP 99, Laws of the 

Federation of Nigeria, 1990. 

Draft Declaration on the Rights and Duties of States, 1949. 

European Convention on Immunity and Protocol, 1972. 




The U.S. Foreign Sovereign Immunity Act, 1976. 

The Department of State Bulletin, 1952. 


Universal Declaration of Human Rights, 1948. 

Covenant on Economic, Social and Cultural Rights, 1966. 

Vienna Convention on the Law of Treaties, 1969.

403 

Vienna Convention on Consular Relations 1963. 

Vienna Convention on Diplomatic Relations 1961. 

Vienna Convention on the Law of Treaties, 1969.

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