Chapter 7: State Jurisdiction and Immunities
175
general rule of customary international law whereby this principle of continuing
immunity would be binding on third States, other than the receiving one, and,
therefore, have
erga omnes
effect.
203
This immunity
ratione materiae,
the court further
held, was effective in the receiving State even after the termination of diplomatic
status, but only in respect of acts performed in the exercise of official duties, with the
provision of assistance in a bomb attack being excluded from such official function.
It is not rare for persons entitled to diplomatic immunity under Art 37 of the 1961
Vienna Convention to abuse their status.
204
In these cases, the receiving State is free
to declare such persons
non grata
. Things become problematic when diplomatic agents
are known to be in the course of committing an offence injurious to the interests of
the receiving State, since Art 29 of the 1961 Vienna Convention prohibits any arrest
or detention. The privileges in Art 29 are distinct from the absolute immunity from
criminal jurisdiction contained in Art 31(1). Furthermore, there does not seem to
exist any rule restraining the receiving State from maintaining internal order through
the arrest or detention of diplomatic agents that violate local criminal law. No criminal
proceedings may thereafter be instituted against protected diplomatic personnel
and the only subsequent avenue is to expel them by declaring them undesirable in
the host Stated.
205
The law applicable to consular agents, who as a rule perform purely administrative
functions, is quite different from that applied to their diplomatic counterparts.
206
UnderArt 41 of the 1963 Vienna Convention on Consular Relations,
207
consular agents
do not enjoy absolute immunity from the criminal jurisdiction of the receiving State,
since in cases of ‘grave crimes’ they may be liable to arrest and judicial proceedings.
Nonetheless, under Art 43 they are entitled to immunity in respect of acts performed
in the exercise of consular functions.
208
Persons attached to special international missions are also subject to a regime of
privileges and immunities. This is dependent on the consent of the receiving State
either on an
ad hoc
basis, or as a result of a relevant treaty obligation. In its
Advisory
Opinion on Interference Relating to Immunity from Legal Process of a Special Rapporteur of
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