Are Diplomatic Missions Inviolable - Essay Example

Are diplomatic missions inviolable? Introduction: The importance of providing inviolability for diplomatic premises and persons has been recognized by the international community, in the interest of promotion and maintenance of friendly relations between nations. During the late 1970s and 1980s there was a spate of incidents of seizure of embassies and disruption of the peace, including violation of international peace agreements. The International Court of Justice has reiterated the importance of preserving the inviolability of diplomatic premises and personnel, however the question that arises in this context is whether diplomatic premises are indeed inviolable or whether there is reason to believe that this position of inviolability may have been compromised. The Vienna Convention: In December 1979, the International Court of Justice in dealing with the case of the hostage taking of diplomatic personnel in the American Embassy of Iran1 pointed out that the institution of diplomacy itself is vital in maintaining peace, cooperation and understanding between various nations. It also stressed the fact one of the fundamental tenets that must be rigorously observed in order to achieve these goals is that the inviolability of diplomatic premises and personnel must be ensured on a reciprocal basis between nations. The Vienna Convention of Diplomatic Relations2 is the formal execution of this principle within the framework of International law, and was formally ratified on February 3, 19653, according protection to diplomatic premises and personnel. The Preamble to the Convention clarifies that “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.”4 Article 3 of the Convention also lists the various functions of diplomatic missions which mandate the provision of protection while functioning within foreign jurisdiction, which are as follows: (a) representing the sending State within the receiving state (b) protecting the interests of the sending State in the receiving State within the limits of international law (c) conducting negotiations with the Government of the receiving State (d) examining all lawful developments and conditions existing in the receiving State and reporting them to the sending State (e) protecting nationals of the sending State on receiving State territory (f) working towards promoting friendly relations between the sending and receiving States and enhancing political, social and economic relationships between the two States5. The Vienna convention of 1961 was followed by the 1963 Vienna Convention on Consular Relations which introduced some amendments that made the requirements of inviolability stricter, including the removal of the discretion of the receiving State to enter the diplomatic premises during an emergency. The strong provisions on inviolability provide diplomatic and consular immunities which cannot be displaced easily. If such immunity is to be removed, it may be done only through the receiving State declaring a particular diplomat of the sending State as persona non grata under Article 9 of the 1963 Convention. Article 22 of the Vienna Convention specifically deals with the inviolability of diplomatic premises of one country that are located within the boundary of another country. Concurrent rights that arise out of the inviolability of diplomatic premises are Article 29, which deals with the inviolability of persons – diplomatic personnel who work on these premises, and Article 30, which deals with the inviolability of their personal residences. Through these Articles, the framework of International law places an obligation upon every country to protect the security and safety of premises and personnel of another State and to provide diplomatic immunity from prosecution under its national laws or any other kind of interference with their functioning. Article 22 of the Vienna Convention of Diplomatic Relations of 1961 is primarily concerned with the diplomatic premises such as embassies, and renders them inviolable. There is both a positive and a negative duty imposed upon the state where the mission is located- positive in the sense that the State must make every effort to actively protect the mission and negative in the sense that the State and its local authorities have an obligation not to enter the premises without having received specific authorization to do so. Article 22 has three subsections which clearly spell out the obligations of the receiving State in the matter of diplomatic premises. Section 1 of this Article emphasizes that the premises itself will be inviolable and “agents of the receiving State may not enter them except with the consent of the Head of the Mission.”6 Section 2 of this Article highlights the positive duty of the receiving State “to take all appropriate steps to protect the premises of the mission against any intrusion or damage.” Section 3 also extends this protection not only to the premises itself, but even to “furnishings and other property thereon” including the “means of transport of the mission”, all of which are rendered inviolable in the sense that they cannot be searched without authorization, attached to or executed in connection with any legal action arising out of the law of the receiving State. The inviolability that ensures the protection of diplomatic missions is based upon the principle of extraterritoriality. Under the umbrella of extra territorially, the premises of the embassy or other diplomatic mission of the sending State will be regarded as a part of the territory of the sending State and not of the receiving State. Therefore it becomes foreign property and under international law, this places a duty upon the receiving State to ensure that the foreign property is protected from intrusion or harm. The 1895 resolution of the Institute of International law first used the term inviolability, which was defined as the strict duty of the receiving State to protect the foreign property from all harm, damage or intrusions caused by the native inhabitants of the receiving State, and any violation of this principle, even by law enforcement authorities or through political or symbolic injuries such as destruction of flags, etc by the receiving State, was to be punished through the infliction of severe penalties7. The issue of inviolability of diplomatic premises: The question of whether or not diplomatic premises are actually inviolable first arose in the year 1979, when the American Embassy in Teheran was seized and people were left without any help forthcoming from the Iranian Government for more than 400 days. In the Case concerning United States Diplomatic and Consular Staff in Teheran,8 the International Court of Justice pointed out that the lack of action on the part of the Iranian Government to take necessary steps to protect the premises and occupants of the American embassy “clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna Conventions.”9 In this case, not only were hostages trapped, sensitive documents were appropriated by the hostage takers with some of these documents even being reconstructed after they had been shredded. Moreover, this case also established that such violation had occurred because of negligence and not due to any lack of resources, which could have been a mitigating factor. The Court clearly stated that the Iranian authorities “had the means at their disposal to perform their obligations; completely failed to comply with these obligations.”10 Therefore the verdict of the Court was that Iran should make reparation to the United States for their violations of their obligation to actively protect the premises and personnel of the diplomatic premises of the American Embassy in Iran. How rigid should the inviolability principle be and are diplomatic missions actually inviolable? When amendments were considered in the matter of inviolability of diplomatic premises, one of the most important issues that arose was the course of action in the event of an emergency where public safety or human life was endangered. Should the receiving State be allowed to intrude upon the mission premises in case of exceptional circumstances which demanded it and who would constitute the proper authority to make that decision that the circumstances were exceptional? In response to these concerns, the general consensus that has emerged in this matter is that allowing the receiving State to decide when exceptional circumstances exist that would permit an eschewing of the inviolability principle and is a dangerous course of action. Therefore, the current status of international law on the inviolability principle is that there are indeed, no exceptional circumstances that exist which would render it permissible to violate the inviolability principle, which now remains unqualified under Article 2211. The receiving State has no rights whatsoever, under any circumstances whatsoever, to enter the diplomatic premises, not even when such entry is for the bona fide, emergent purpose such as an inspection, putting out a fire or constructing underground pipes, for example. The inviolability principle cannot be breached even if the receiving State suspects that the diplomatic premises are being used for illegal purposes or if the inviolability protection is being abused and that the mission being used for a purpose other than what it is fit for. The only way members of a receiving State can enter diplomatic premises without violating the inviolability principle is through the express consent of the head of the mission. In the event of a fire or other emergency, this provides the opportunity for the officials of the mission to destroy or remove sensitive material before calling for the police or fire authorities, thereby placing their national inviolability on a higher level that protection when an emergency arises. Inviolability accords to diplomatic premises a status where they are independent of the jurisdiction of the receiving state and under International law, the inviolability of the premises is not accorded by the receiving State but by the sending State - which also appoints the head of the Mission to ensure that the mission functions as per the laws of its own home jurisdiction. However, the duty of the receiving State to protect the diplomatic premises by taking “all appropriate steps”12 implies that there is a duty of care and due diligence that is imputed on the receiving State – through the exercise of the level of prudence, judgment and care that may be expected under the circumstances. Analysis of inviolability: Kigris has discussed the issue of diplomatic inviolability in the case of Iraq and has contested the claim of Richard Boucher, spokesperson of the U.S. State Department that the accreditation of foreign diplomats in Iraq would have lapsed in the wake of U.S. occupation and the ousting of the Saddam Hussein rule13. Kigris contends that although the United States is an occupying power in Iraq, it cannot appropriate to itself the responsibility of accreditation of diplomats which can be executed only by the sending States. Kigris takes a position of strong support for the inviolability that is granted for diplomatic property and personnel. Although Boucher was unable to assess the status of foreign embassy premises existing within Baghdad, Kigris supports the principle of inviolability of premises laid out in Article 22, which mandates that no agents in a receiving State may enter the property of a sending State, thereby highlighting the fact that such diplomatic premises will be inviolate, even when there is upheaval or war raging in the territory of the receiving State, especially as per Article 45 of the Convention. Denza has discussed several of these important events that have impacted upon the provisions of Article 22 of the Vienna Convention on inviolability of diplomatic premises by violating its provisions. She has included the taking of U.S. hostages in the Iranian Embassy at Teheran in 1979, the U.S. invasion of Panama in 1989 and state sponsored terrorism in the 1970s and 80s among others.14 She points out how violations that occurred, such as the searching of the Nicaraguan Ambassador’s residence by the United States, have actually strengthened the inviolability principle, rather than weakening it, especially in relation to embassy bank accounts which are easily identifiable assets, yet have been deemed to enjoy immunity under the restrictive principles of diplomatic inviolability. Denza has also provided the example of the siege of the Spanish embassy by Guatemalan protestors, wherein the problems originated after the Guatemalan Government initiated a rescue operation against the express wishes of the Ambassador, which in turn caused damages and soured diplomatic relations between the two countries. On the basis of this, she has argued that when damages are caused due to the failure of the receiving Government to protect the sent Government, then damages must be paid accordingly.15 However, an opposing view is offered by Satow, who states that since the receiving state has no authority whatsoever as far as the mission is concerned, it is not also obliged to provide protection and is therefore not obliged to make reparation for any damages that may occur from its own failure to provide protection to the mission.16 But the general tendency in this regard has been for nations to make reparation for damages arising out of any breach of the inviolability of the diplomatic mission. Denza has also hinted at the underlying implications and anomalies that arise for example, from the fact that during the U.S. invasion of Panama in 1989, the United States respected the inviolability of the Papal Nuncio’s residence in Panama, but did not see fit to extend the same inviolability to the premises of the Nicaraguan Ambassador, which were searched despite being in contravention of the principle of inviolability of diplomatic premises.17 The inviolability principle also poses some difficulties in the case of public demonstrations, which are generally carried out in front of such premises and may impair the dignity of the mission, cause interference with its smooth functioning and also pose a security risk. When the receiving State is a democracy, such public demonstrations cannot be forbidden, however inviolability has been protected in several countries through the imposition of regulations marking off areas around the premises forbidden to members of the public18. In Britain, the Foreign Affairs Committee took up the issue of public demonstrations and the threat posed to inviolability of diplomatic premises and concluded that so long as the demonstrations did not interfere with the work of the Embassy or pose any threat to its personnel or property, the requirements of Article 22 of the Vienna Convention could be satisfied19. However, on the whole, Denza asserts that as a result of the abuses of diplomatic immunity in the 1980s and the verdicts of the International Court of Justice in reference to these violations, the VCDR has played a vital role in stabilizing the law. She is of the view that there is now a great deal of respect for its underlying principles of order as a result of which there is now a high degree of compliance with the VCDR as far as the inviolability of diplomatic premises is concerned.20 Case Law: The most important case that arises in the area of inviolability of diplomatic premises is the case of the United States Consular staff in Teheran mentioned Supra, where the International Court of Justice clearly enforced the inviolability principle and maintained that the receiving State could not be permitted to encroach into the territory of the sending State. The issue of inviolability of embassy premises also arose in the recent case of Ignatiev v. United States.23 In this instance, two Bulgarian nationals were attacked by robbers outside the chancery of Bulgaria in Washington D.C., and one of them was killed while the other was wounded. The diplomats sued the U.S. Government for the negligence by the U.S. Secret Service in adhering to the requirements laid out in both the Convention of Diplomatic relations and Consular Relations. However, as pointed out by Murphy, the issue that arose in this case was that of jurisdiction, since the claimants brought action under the Federal Claims Tort Act which provides a limited waiver of sovereign immunity.24 While the Vienna Convention undoubtedly implies a duty on the receiving State to ensure the protection of diplomatic premises, it is up to the host State to take whatever steps it may deem to be necessary in providing that protection. Therefore, there is a discretionary function that is present, as a result of which the receiving Government (the United States in this case) could not be held liable for not having provided a particular service. In fact, by strictly applying the principles of international law to this case, it may be argued that the Bulgarian embassy exists under foreign jurisdiction and therefore the receiving State is not responsible for maintaining law and order within those premises since they fall outside its own jurisdiction and it is not authorized to interfere under any circumstances. The provisions of domestic American tort law were therefore inapplicable in this case and the claim was rejected on grounds of lack of jurisdiction. But in the case of S v. Berlin Court of Appeal25 the District Court of Berlin Tiergarten issued a warrant for the arrest of the former Ambassador of Syria to the German Democratic Republic for causing a bomb blast in Berlin. One of the issues that arose in this case was the question of the diplomatic immunity that was to be accorded to the defendant, however the inviolability of the premises had to do with the embassy of the sending state (Syria) in the receiving State of GDR. The question that arose in this instance was whether Berlin as the successor of GDR was obliged to honor the diplomatic inviolability extended to the Syrian diplomat by the GDR. Berlin was a third party and had the status of being GDR’s successor, but the German Constitutional Court held that the Vienna Convention “did not provide for the devolution of that obligation to the Federal republic as GDR’s successor.”26 Therefore, according to the Court, subsisting immunity cannot have an erga nomes effect and be binding upon States other then the receiving State. The basis upon which the Court applied the principle of diplomatic immunity in this case is that immunity as such can subsist only when it exists as an organ of a sending State, therefore since Berlin in this instance was neither the sending nor the receiving State, it was not placed under any obligations or restrictions in terms of exercising its jurisdiction on the diplomat. In effect therefore, this case appears to suggest, as does the Ignatiev case, that there are restrictions on the inviolability principle and that it may not exist in every case. This may however be contrasted with Kriger’s views on the eschewing of diplomatic immunity through the occupation of Iraq by the United States, and the verdict of the International Court of Justice in the case of the American diplomats in Teheran, where the principle of inviolability has been upheld. In fact, Fassbender has also pointed out that the judgment in the S v Berlin case appears to suggest that the German Constitutional Court did not adhere to the idea that diplomatic relations as such constitutes a separate and self contained regime in international law; that is independent of the law of the individual States. This appears to be in contravention of the position adopted by the International Court of Justice and raises the question of whether the inviolability principle of diplomatic premises can in fact stand? Conclusion: The Bulgarian diplomats were attacked within the territory of the diplomatic premises. However, the fact that the claimants in this case did not win their case is not necessarily an indication that the inviolability of the premises did not exist. Since these claimants filed their case under Federal tort law, it was merely the issue of jurisdiction that was the restraining factor in granting them relief. The S v Berlin case could be deemed to be questionable from the point of view of diplomatic immunity guaranteed in international law. Although the Court presented its decision as resting within the framework of established law, it is in fact in contravention of the wide reaches of diplomatic immunity that is provided under International law. International law has repeatedly upheld the inviolability of diplomatic missions, as was the case in the United States Diplomatic Staff. In particular, in instances of disturbances of peace caused to diplomatic premises, the issue of public demonstrations has also been tempered through the restrictions imposed by inviolability of the premises. For example, in the case of Frend et al v United States27 the Court concluded that a resolution that had been passed by both Houses of Congress making it unlawful for any trespass into any area within 500 feet of a diplomatic embassy or mission, did not in any way infringe upon individual freedoms and constitutional rights guaranteed under the U.S. Constitution. The Court held that the imposition of such restrictions was reasonable and proper in order to ensure that diplomatic missions could function peacefully and without hindrance. A similar issue was stake in the case of Finzer v Barry and the same question of whether it was unconstitutional to impose restrictions upon public demonstrations in the interest of preserving the inviolability of the diplomatic premises came to the fore again. In this case, the Court held that “the unique restrictions imposed are justified by the unique interests that are at stake.”28 The Court also clarified however, that so long as the inviolability of the diplomatic premises was preserved and no move was made to disturb its peaceful functioning process, demonstrations would be permitted. On the basis of the above, it may therefore be concluded that international law has built a very strong framework for the preservation of the inviolability of diplomatic premises, especially as demonstrated in the case of the siege of the U.S. Embassy in Teheran. In fact, as Denza has pointed out, after the disturbances in the late 1970s and the 1980s, the question of the inviolability of premises appears to have become an accepted fact and very few nations are in fact violating it. The question of the lack of authority of the receiving State to interfere in any way with the diplomatic premises is now established in international law. However, as Denza has also highlighted, there is a problem that arises when such premises are used for illegal or improper purposes, which are not aligned with the goals of the Vienna Conventions to promote friendship and cooperative relations between countries. In particular, in view of the increasing instances of terrorist incidents, the inviolability of diplomatic premises poses a problem since it provides a safe haven for terrorists and makes them immune to the criminal process and law of the receiving country by virtue of lack of jurisdiction, since the issue of extra territoriality also arises. Moreover, as some cases detailed above have shown, there could also be instances when the inviolability of the premises may be placed in doubt or rendered questionable; instances where it may become necessary to breach the inviolability principle. In particular, when such premises are being used for illegal purposes by terrorists, the issue of whether or not such strict inviolability should be maintained may be a relevant issue to consider. International law is mandated by world consensus and up to now, the international law framework has adhered to strict inviolability of diplomatic premises and as Denza has pointed out, the Vienna Conventions have contributed greatly to the maintenance of law and improvement in relations between nations through the enforcement of the inviolability of diplomatic premises and other Articles of the Convention. In the few instances where there has been a breach of this principle, the concerned nations have generally settled the matter by compensating the sending State for such violations occurring in the receiving State. While some cases have cast doubts upon the enforceability of the inviolability principle and there is really no compulsion for a Government to enforce it because the means of enforcement have been left to the receiving State’s jurisdiction, nevertheless these cases cannot form a basis for concluding that diplomatic premises are not inviolable. There is certainly room for debate on whether or not inviolability should be so strictly enforced, especially in instances where the principle is being misused by terrorist and other illegal elements, however the question about whether or not it actually exists must be answered in the affirmative. The provisions of the Vienna Convention of Diplomatic relations and later that of the Convention of Consular Affairs have all emerged as the result of consensus among the various nations on the importance of providing the freedom to diplomatic property and persons. The restriction has been so strictly enforced that diplomatic premises may not be entered into by anybody from the receiving State even in the case of a bona fide emergency, since those premises belong to another jurisdiction in another country. All matters pertaining to diplomatic premises and property that are laid out in the Vienna Conventions are governed under the framework of International law. Therefore, they cannot be interfered with easily by individual nations and the laws prevailing within them. On this basis, it may therefore be concluded that while questions have been raised about inviolability in a few cases, nevertheless on the while, diplomatic premises are indeed inviolable. They must remain so, if the interests of peace and friendship among nations are to be preserved. While it is necessary for the world community to examine means to address some of the problems arising out of the misuse of inviolability, the fact that it exists cannot be disputed. Therefore diplomatic premises are inviolable. References: Case concerning United States Diplomatic and Consular Staff in Teheran, International Court of Justice reports 1980 at p 530; Summary of Case Report available at http://www.lawschool.cornell.edu/library/cijwww/icjwww/idecisions/isummaries/iusirsummary800524.htm Denza, Eileen, 1998. Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (2nd edn) Oxford, New York: Clarendon Press. Fassbender, Bardo, 1998. Diplomatic Immunity-Vienna Convention on Diplomatic relations – effect of diplomatic immunity on states other than receiving State –relationship between state immunity and diplomatic immunity – state succession and diplomatic immunity American Journal of International Law, 91(1), pp 94-99 Finzer v Barry, U.S. Court of Appeals, 798 F 2d 1450 Frend et al v United States (1939) 100 F 2d 691 Gore-Booth (ed), 1979. Satow’s Guide to Diplomatic Practice 5th Edn. London: Longman Ignatiev v. United States, 238 F.3d 464, 465-66 (D.C. Cir. 2001). Kigris, Frederic L, 2003. Diplomatic immunities in Iraq. ASIL Insights. [online] available at: http://www.asil.org/insights/insigh109.htm Lewis, Charles J, 1990. State and Diplomatic Immunity 3rd edn. London: Lloyd’s of London Press Murphy, Sean D, 2001. Protection of embassies as a discretionary function The American Journal of International law, 95(4), pp 873 Sen, B. 1979. A Diplomat’s handbook of International law and Practice 2nd edn. The Hague: Martinus Nijhoff Publishers S v Berlin Court of Appeal and District Court of Berlin-Tiergarten 24 Europaische Grundrechte-Zeitschrift 436; German Federal Constitutional Court,June 10, 1997 Visit of the Prime Minister of Madagascar on 23 October 2003 [online] available at: http://www.icj-cij.org/icjwww/ipresscom/ipress2003/ipresscom2003-34_visit_20031023.htm The Vienna Convention of Diplomatic relations. [online] available at: http://www.mfa.gov.pl/About,MFA,2124.html Read More