United Nations Law Commission Review - Diplomatic Waiver & Immunity pursuant to International Court of Justice Decision

Mrs Tinuade Oyekunle is a Honourary Vice President and Council Member of ICCA .Mrs Oyekunle has addressed many seminars and conferences. She authored The Nigerian Law of Arbitration incorporating the UNCITRAL Model Law, published in the ICCA Yearbook of International Commmercial Arbitration by Kluwer

General bio 

Mrs. Oyekunle is the Managing Partner & founder of Tinuade Oyekunle & Co. She is a seasoned Chartered arbitrator, handling complex international commercial disputes under the auspices of arbitral institutions such as ICC, LCIA, and ICSID. She served as Director, Public International Law for the Federal Republic of Nigeria, as Legal Adviser to the Council of Ministers and Heads of States of the Organisation of African Unity(now, African Union),the Asian African Legal Consultative Committee (AALCO) & the International Maritime Consultative Organisation (IMO)

Awards, Nominations and Special roles 

Mrs Oyekunle is a Fellow of the Chartered Institute of Arbitrators (UK), a member of the institute’s Board of Management & Chairman of the Education and Membership committee. She is a member of the Board of Governors of the Caro Arbitration Center, a member of the Governing Council of the Lagos International Centre for Commercial Arbitration.  She was recognised as on of the  leading women in Arbitration by Global Arbitration Review, “Women in Arbitration”

United Nations Law Commission Review - Diplomatic Waiver & Immunity pursuant to International Court of Justice Decision

After the US Diplomats Hostages taking at the US Embassy Building in Tehran by the Iranian Revolutionary Students, the US Government submitted a Claim against Iranian Government for breaching the Vienna Convention on Diplomatic Relations. 

In order the Iranians to plead in their defence before the international community, the Iranians made by force and threat a US Charge de Affairs to sign on the letterhead of the US Embassy in Tehran a diplomatic waiver to the US Personals who were taken hostages at that time.

Therefore, the International Court of Justice in Den Hague expressed clearly in the USA – versus – Iran, that –

“Diplomatic immunity is not immunity from legal liability, but immunity from suit.

This means that diplomatic agents are not above the law; on the contrary, Diplomats are under an obligation to respect the laws and regulations of the receiving State or third state, and if diplomats breach the law diplomats are still liable, but the receiving or third state cannot sue the diplomats within the receiving or the third state unless the receiving or the third state submits to the sending state a formal written request for a waiver of diplomatic immunity including waiver of jurisdiction. 

An employee of a sending state embassy within the receiving or third state jurisdiction cannot have the authority to waive a diplomatic immunity of its sending state diplomat.  Only the sending state foreign minister can make the diplomatic immunity waiver. While personal inviolability is a physical privilege, diplomatic immunity is a procedural obstacle. Diplomatic immunity from criminal jurisdiction of the receiving or the third state is unqualified and absolute.

Therefore, whenever diplomatic immunity is established by a genuine diplomatic visa granted to the diplomat who entered the receiving or third state and accepted by the court of the receiving or the third state, the latter (i.e. the Court) must discontinue all proceedings against the diplomat being defendant concerned.

The court in the receiving or the third state must establish the diplomatic immunity wavier was obtained from the sending state minister of foreign affairs in the form of statutory of declaration well before initiating all court’s processes and claims. 

The diplomatic agent within jurisdiction of the receiving or third state is also immune from any measure of execution within the receiving or third state and he can raise his diplomatic immunity from execution to bar any form of enforcement of a conviction or order or judgement against him. 

Any ignorance by the authorities of the receiving or third state to the diplomatic immunity waiver procedure is an act of crime against internationally protected person and a breach to Vienna Convention on Diplomatic Relations that endangers the receiving or third state’s national interest. 

All proceedings against the diplomat must be suspended during the period of entitlement to diplomatic immunity. 

The State Foreign Minister of the receiving state or third state must serve on the diplomat in relation to the commitment of an alleged criminal offence within jurisdiction of receiving state of third state, a written notice expressing, under the common seal of the receiving or third state by the state foreign minister, clearly beyond doubt that the said diplomat must depart the receiving or third state with time frame from the date of service of the diplomatic note and the receiving or third state must express in this diplomatic note the reason why for the receiving or third state making this diplomatic legal notice pursuant to Vienna Convention.”

Notes referred by the International Court of Justice:

(1)   United Nations Treaty Series, 1964, vol. 500, p. 95.

(2)   See S. Mahmoudi. Some Remarks on Diplomatic Immunity from Criminal Jurisdiction. – J. Ramberg, O. Bring, S. Mahmoudi (eds.). Festskrift till Lars Hjerner: Studies in International Law. Stockholm: Norstedts, 1990, p. 327.

(3)   Hereinafter the Vienna Convention on Diplomatic Relations is referred to as the Vienna Convention.

(4)   I.L.C. Yearbook, 1958, vol. II, p. 105.

(5)   See also article 41, paragraph 1 of the Vienna Convention, which states that “without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State”.

(6)   R. Higgins. The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience. – American Journal of International Law, 1985, vol. 79, p. 645.

(7)   See C. J. Lewis. State and Diplomatic Immunity. 3th ed. London: Lloyd’s of London, 1990, p. 135. For example, the Spanish ambassador Mendoza was expelled in 1584 on suspicion of conspiracy against the English queen. But at the same time, the French ambassador d’Aubéspine, who fell under similar suspicion three years later, continued to act as ambassador to Queen Elizabeth after the French king had ignored a request for his recall and he was not tried for his acts.

(8)   I.L.C. Yearbook, 1957, vol. I, pp. 209–210; Vol. II, p. 138; I.L.C. Yearbook, 1958, vol. II, p. 97.

(9)   Hereinafter all references to articles are references to the articles of the Vienna Convention if not noted otherwise.

(10)                      States are under no obligation to have specially defined crimes if victims are diplomatic agents. Estonia, however, has expressisverbiscriminalised attacks on internationally protected persons, which include also diplomats. – Subsection 246 (1) of the Estonian Penal Code (karistusseadustik). – RiigiTeataja (the State Gazette) I 2001, 61, 364; 2002, 64, 390 (in Estonian).

(11)                      Brownlie. Principles of Public International Law. 5th ed. Oxford: Oxford University Press, 1998, p. 358.

(12)                      It is interesting to note that in his statement, when answering to the request of a senator about French policy concerning diplomatic immunity, the French Prime Minister said that a diplomatic agent may not be arrested or detained except in case of un flagrant délit, that is a case requiring no further collection of evidence. The value of this kind of a statement is very doubtful and these on-the-spot arrests, under the circumstances whatsoever, clearly violate the inviolability of a diplomatic agent. See Journal OfficielSénat, 16 December 1999, p. 4137.

(13)                      United States Diplomatic and Consular Staff in Teheran. – I.C.J. Reports, 1980, p. 3, respectively paras. 67 and 76.

(14)                      This Iranian position is, however, faulty, as the only reprisal allowed by the Koran is the prevention of an envoy’s departure (basically a violation of personal inviolability), but even that only if the envoy of the receiving state is being treated in the same manner. See C. Bassiouni. Protection of Diplomats under Islamic Law. – American Journal of International Law, 1980, vol. 74, p. 620.

(15)                      I.L.C. Yearbook, 1958, vol. II, pp. 94–95.

(16)                      Article 3 points out clearly that the diplomatic agent represents the sending state and the preamble also acknowledges the link between the immunities of diplomats and their function as representing the sending state.

(17)                      See Empson v. Smith, Queen’s Bench Division. – 1 Q.B. 426 (1996).

(18)                      Article 41, paragraph 1 (see also Note 5).

(19)                      See for example Dickinson v. Del Solar, King’s Bench Division, – 1 K.B. 376 (1930).

(20)                      See also Arrest Warrant of 11 April 2000. Available at: http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_ 20020214.PDF (30.7.2003). Though this case did not actually concern any diplomatic agents but an incumbent Minister for Foreign Affairs, we can draw parallels to our topic as high officials of a state also enjoy immunity similar to diplomatic immunity.

(21)                      See article 31, paragraph 1.

(22)                      Article 31, paragraph 3, though there are still exceptions in case of execution of certain judgments in civil matters from which diplomats do not enjoy immunity.

(23)                      See for example the case of Gustavo J. L. and Another before the Supreme Court of Spain. – International Law Reports, 1991, vol. 86, p. 517.

(24)                      United Sates Diplomatic and Consular Staff in Teheran (Note 13), para. 79.

(25)                      Text of the Rome Statute of the International Criminal Court is available at: http://www.icc-cpi.int/docs/basicdocs/rome_statute(e).pdf (30.7.2003).

(26)                      C. Rousseau. Droit international public. Vol. IV. Paris: Sirey, 1980, p. 202.

(27)                      Article 31, paragraph 4 states 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”.

(28)                      Revue Général de Droit International Public, 1984, p. 674.

(29)                      See United States v. Erdos, United States Court of Appeals (4th Circuit). – 474 F.2d 157 (1973).

(30)                      See S. L. Wright. Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent Criminal Acts. – Boston University International Law Journal, 1987, vol. 5, pp. 177–211.

(31)                      See Portugal v. Goncalves. – International Law Reports, 1990, vol. 82, p. 115.

(32)                      Arrest Warrant of 11 April 2000 (Note 20), para. 55.

(33)                      See J. E. Donoughue. Perpetual Immunity for Former Diplomats? A Response to “The Abisinito Affairs: A Restrictive Theory of Diplomatic Immunity?” – Columbian Journal of Transnational Law, 1988–1989, vol. 27, pp. 615–630.

(34)                      See D. Ben-Asher. Human Rights Meet Diplomatic Immunities: Problems and Possible Solutions. Available at:

I.                   http://www.law.harvard.edu/Admissions/Graduate_Programs/publications/papers/benasher.pdf (30.7.2003).

(35)                      See Barcelona Traction, Light and Power Company Case (Second Phase). – I.C.J. Reports, 1970, p. 3, para. 32.

I.                   Brownlie (Note 11), p. 515.

(36)                      Section 123 (2) of the Estonian Constitution. – RiigiTeataja (the State Gazette) 1992, 26, 349 (in Estonian).

(37)                      Section 3 of the Estonian Constitution.

(38)                      Kriminaalmenetluseseadustik (Code of Criminal Procedure). – RiigiTeataja (the State Gazette) I 2003, 27, 166 (in Estonian).

(39)                      J. Sootak, P. Pikamäe. Karistusseadustik: kommenteeritudväljaanne (Penal Code: Commented Edition). Tallinn: Juura, Õigusteabe AS, 2002, p. 34 (in Estonian).

(40)                      According to article 8, paragraphs 2 and 3, the sending state may appoint non-nationals as its diplomatic representatives with the consent of the receiving state.

(41)                      For example, after the Libyan People’s Bureau incident the House of Commons Foreign Affairs Committee considered amendments to the Vienna Convention, but found them not only virtually impossible to achieve, but also of doubtful desirability. See House of Commons Foreign Affairs Committee. First Report. The Abuse of Diplomatic Immunities and Privileges. Commons Paper No. 127 (1985), para. 42.

(42)                      See S. Mahmoudi (Note 3), pp. 345–346.

(43)                      I.L.C. Yearbook, 1957, Vol. II, p. 138.

(44)                      United States Diplomatic and Consular Staff in Teheran (Note 13), para. 86.

(45)                      See C. Rousseau (Note 26), pp. 201–202.

(46)                      See Caroline case. – British and Foreign State Papers, 1857, vol. 29, pp. 1137–1139; British and Foreign State Papers, 1958, vol. 30, pp. 195–196; see also D. J. Harris. Cases and Materials on International Law. 5th ed. London: Sweet & Maxwell, 1998, pp. 894–896.

(47)                      Article 32, paragraph 1.

(48)                      Article 32, paragraph 2.

(49)                      I.L.C. Yearbook, 1958, Vol. II, p. 99.

(50)                      See J. Brown. Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations. – International and Comparative Law Quarterly, vol. 37, 1988, p. 78.

(51)                      See M. S. Zaid. Diplomatic Immunity: to Have or not to Have, that is the Question. – ILSA Journal of International and Comparative Law: International Practitioner’s Notebook, 1998, vol. 4, No. 2.

(52)                      C. J. Lewis (Note 7), p. 154.

(53)                      See E. Denza. Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations. 2nd ed. Oxford: Oxford University Press, 1988, pp. 279–281.

(54)                      See for example Former Syrian Ambassador to the GDR case. – International Law Reports, 1999, vol. 115, p. 597.

(55)                      Arrest Warrant of 11 April 2000 (Note 20), para. 61.

(56)                      See for example Charter of the International Military Tribunal of Nuremberg, article 7; Charter of the International Military Tribunal of Tokyo, article 6; Statute of the International Criminal Tribunal for the former Yugoslavia, article 7, paragraph 2; Statute of the International Criminal Tribunal for Rwanda, article 6, paragraph 2; Rome Statute of the International Criminal Court, article 27, paragraph 1.

(57)                      Hereinafter the Rome Statute of the International Criminal Court is referred to as the Rome Statute.

(58)                      Article 27, paragraph 1 of the Rome Statute.

(59)                      This is a superfluous provision since if official status cannot constitute a defence to criminal liability, it necessarily follows that immunity regarding jurisdictional competence will have already been denied.

(60)                      Article 12 of the Rome Statute.

(61)                      See W. A. Schabas. An Introduction to the International Criminal Court. Cambridge: Cambridge University Press, 2001, p. 64.

(62)                      Arrest Warrant of 11 April 2000 (Note 20), para. 58.