i

D I P L O M AT I C L AW I N   A N E W M I L L E N N I U M
ii
 iii

Diplomatic Law in
a New Millennium
Edited by
PAU L B E H R E N S

1
iv

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 v

Preface

At few times within living memory has the importance of the diplomatic office
been as pronounced as today.
The current state of international affairs carries a notion of uncertainty; and
there are indications that storm lies ahead. The rise of violent non-​State actors
contributes to that, but equally significant is the inability of members of the inter-
national community to agree on a common position to counter that threat. In its
place, political differences between States, even those that had traditionally been
allies, reassert themselves with a force previously thought unimaginable. The ability
to understand the concerns of the world is often given a lesser value than the power
to please audiences at home; walls have become more important than bridges.
In situations of this kind, the role of the diplomatic agent carries a meaning
which far exceeds the significance it enjoys in the popular mind. Diplomats are
still the eyes and ears of their masters; they possess a more intimate understand-
ing of the cultural and political conditions in the receiving State than that which
can be expected of their superiors at home, and in times of crisis these charac-
teristics are more important than ever. But they are also in a unique position to
mediate between the worlds, to identify similarities and areas of common con-
cern. Often enough, they are able to anticipate fields in which divergent views
are a likely phenomenon and may help to prevent the kind of harsh disagreement
that is otherwise bound to emerge. In this regard, diplomats not only serve inter-
ests of sending States, but fulfil the mandate which the Vienna Convention on
Diplomatic Relations (VCDR), the leading instrument in the field, took as its
guiding principle: they contribute to the ‘development of friendly relations among
nations, irrespective of their differing constitutional and social systems’.
But the current age has also put the rules underlying the diplomatic office into
sharper focus. The increased criticism with which civil society approaches the rep-
resentatives of established States and institutions does not halt before the doors of
embassies, and the wide range and often absolute nature of diplomatic immuni-
ties is thus an ongoing topic of debate. It is joined by a growing discomfort about
conduct which is perceived as diplomatic interference in the internal affairs of the
host State and about reports of misconduct by diplomatic agents in their role as
employers. At other times, it is the receiving State whose actions affect the diplo-
matic office:  recent cases involving the breach of the inviolability of diplomatic
communications bear witness to that. And modern diplomatic law continues to be
plagued by challenges which the drafters of the VCDR and of related instruments
had not been able to resolve: open questions still attach, for instance, to the nature
of diplomatic asylum and to the circle of family members of the diplomatic agent
to whom rules of immunity apply in equal measure.
vi

vi Preface
In other areas again, actors have joined the field of diplomatic relations who
in previous times played no role in it or whose remit had been considerably cur-
tailed. International organizations must count among the most active forces in
this regard—​as do certain regional organizations (most prominently, the European
Union (EU) with its very extensive network of diplomatic missions). They are
joined by sub-​State entities—​regions of independent States which increasingly
seek to make their voice heard on the diplomatic plane.
There is therefore need for a study which addresses the challenges to which
contemporary diplomatic law is subjected, for a critical analysis of its characteris-
tics, and an assessment of the question whether the codified rules in the field are
adequate and sufficient for the demands which the law faces today.
Diplomatic Law in a New Millennium provides an in-​depth analysis of many of
the outstanding controversies in the field. It is a rare collaborative effort: its con-
tributors are twenty scholars from diplomatic law and other areas of international
law, active and retired diplomats and practitioners at international courts. It thus
brings together a variety of perspectives by experts in the field which serve as a
stimulus and, often, as a basis for the repositioning of the debate. Yet where the law
is at its most controversial, there is also room for a wide range of views. The opin-
ions expressed in the individual chapters (including introductory and concluding
parts) are therefore the views of the respective authors; they are not necessarily
shared by other contributors to the book or the institutions of which the authors
may be members.
The principal objective of this study is a critical analysis of the rules that apply
to the diplomatic office. It is, therefore, not a general conversation on diplomacy in
the wider, and more political sense of the word, but an investigation of salient issues
of modern diplomatic law. The VCDR plays an essential role in this regard—​in
view of its direct impact on the modern framework of the law, in view of its influ-
ence on subsequent instruments, and even in view of issues that were omitted from
its scope. References to the ‘Vienna Convention’, the ‘Convention’, or the ‘VCDR’
throughout the text are therefore references to that treaty and Articles mentioned
in the text are those of the Vienna Convention on Diplomatic Relations, unless
a different instrument is indicated. Its full text is available in the Annex, and our
thanks go to the United Nations who gave us permission to reprint it here.
We would also like to extend heartfelt thanks to Alba Brown and Dr Kai Bruns
for their invaluable help with the translation and editing of Chapter 4. Thanks also
go to Kaisa Mitt, who helped with the book proposal and with getting this project
under way. At Oxford University Press, we are particularly grateful to John Louth,
Emma Endean-​Mills, and her predecessor, Nicole Leyland, for their assistance and
encouragement throughout the production process, and for the warm welcome
they extended to this study from its very beginnings.
The cut-​off point for the consideration of law and factual developments was
1 December 2016.
Edinburgh, December 2016
Paul Behrens
 vi

Contents

List of Abbreviations  ix
Notes on Contributors  xiii

PA RT I   — ​ I N T RO D U C T I O N
1. Diplomatic Law in a New Millennium  3
Paul Behrens
2. A Former Diplomat’s Reflections on the Vienna Convention  15
Brian Barder
3. In Praise of a Self-​Contained Regime: Why the Vienna Convention on
Diplomatic Relations Remains Important Today  23
J Craig Barker

PA RT I I   — ​ H I S TO RY
4. Views of a Delegate to the 1961 Vienna Conference  43
Nelson Iriñiz Casás
5. On the Road to Vienna: The Role of the International Law
Commission in the Codification of Diplomatic Privileges and
Immunities, 1949–​1958  54
Kai Bruns

PA RT I I I   — ​ P E R S O N A L I M M U N I T Y
6. The Personal Inviolability of Diplomatic Agents in Emergency Situations  75
Paul Behrens
7. The Privileges and Immunities of the Family of the Diplomatic
Agent: The Current Scope of Article 37(1)  98
Simonetta Stirling-​Zanda
8. The Inviolability of Diplomatic Agents in the Context of Employment  113
Lisa Rodgers
9. Private Domestic Staff: A Risk Group on the Fringe of the Convention  132
Wolfgang Spadinger

PA RT I V   — ​ P RO P E RT Y I M M U N I T Y
10. The Protection of Public Safety and Human Life vs the Inviolability of
Mission Premises: A Dilemma Faced by the Receiving State  149
Yinan Bao
vi

viii Contents
11. Contemporary Developments Relating to the Inviolability of Mission
Premises  172
Juan E Falconi Puig
12. The Non-​Customary Practice of Diplomatic Asylum  179
Péter Kovács and Tamás Vince Ádány
13. The Protection of Diplomatic Correspondence in the Digital
Age: Time to Revise the Vienna Convention?  204
Patricio Grané Labat and Naomi Burke
14. The Diplomatic Duffle Disparity—​A Third World Perspective  231
Sana Sud

PA RT V  —​ D I P L O M AT I C   D U T I E S
15. Legal Duties of Diplomats Today  247
Sanderijn Duquet and Jan Wouters
16. The Duty of Non-​Interference  272
Paul Behrens

PA RT V I  —​ B E YO N D T H E   VC D R
17. Intersections between Diplomatic Immunities and the Immunities of
International Organizations  297
Alison Duxbury
18. The European Union and Diplomatic Law: An Emerging Actor in
Twenty-​First Century Diplomacy  319
Graham Butler
19. Skirting Officialdom: Sub-​State Diplomats and the VCDR Lessons
from Scotland and Wales  341
Francesca Dickson

PA RT V I I  —​ C O N C LU D I N G T H O U G H T S
20. Diplomatic Law Today: Has the Vienna Convention Met Its
Expectations?  365
Paul Behrens

Annex:​Vienna Convention on Diplomatic Relations (1961) 393

Index  407
 ix

List of Abbreviations
ABGB Allgemeines Bürgerliches Gesetzbuch (Austria)
ACHR American Convention on Human Rights
AFDI Annuaire Française de Droit International
Afr J Int’l & Comp L
African Journal of International and Comparative Law
AJIL American Journal of International Law
All ER All England Reports
Am U J Int’l L & Pol’y
American University Journal of International Law & Policy
Ariz J Int’l & Comp L
Arizona Journal of International and Comparative Law
ARSIWA Draft Articles on the Responsibility of States for Internationally
Wrongful Acts (see also DARS)
ASEAN Association of South East Asian Nations
ASIL American Society of International Law
AU African Union
Aust YBIL Australian Yearbook of International Law

BAC Bureau de l’Amiable Compositeur

Bgbl Bundesgesetzblatt
BIOT British Indian Ocean Territory
BISD Basic Instruments and Selected Documents (GATT)
BYIL British Yearbook of International Law

Can Y B Int’l L
Canadian Yearbook of International Law
CERD International Convention on the Elimination of All Forms of
Racial Discrimination
CFSP Common Foreign and Security Policy
CJIL Chinese Journal of International Law
CMLR Common Market Law Reports
Cmnd Command Paper
COE Council of Europe
CRSIO Vienna Convention on the Representation of States in their
Relations with International Organizations of a Universal
Character
CSM Convention on Special Missions

DARS Draft Articles on the Responsibility of States for Internationally

Wrongful Acts
DDC US District Court, District of Columbia
Duke J Comp & Int’l L Duke Journal of Comparative and International Law

ECHR [European] Convention for the Protection of Human Rights

and Fundamental Freedoms; Reports of Judgments and
Decisions (of the European Court of Human Rights)
ECR European Court Reports
x

x List of Abbreviations
ECtHR European Court of Human Rights
EEAS European External Action Service
EFTA European Free Trade Association
EHRR European Human Rights Reports
EJIL European Journal of International Law
Env LR Environment Law Reports
ESA European Space Agency
EU European Union
Eur J Int Law European Journal of International Law (see also EJIL)
EWCA (Civ) Court of Appeal of England and Wales (Civil Division)
EWHC High Court of England and Wales
EWHC (QB) High Court of England and Wales (Queen’s Bench Division)

FCO Foreign & Commonwealth Office

Fordham Int’l LJ Fordham International Law Journal
FRUS Foreign Relations of the United States
F. Supp. Federal Supplement

GATT General Agreement on Tariffs and Trade

Geo J Int’l L Georgetown Journal of International Law
GPO Government Publishing Office (USA)

HC House of Commons
HMG Her Majesty’s Government
Hofstra L Rev Hofstra Law Review
HRC Human Rights Committee

IACHR Inter-​American Commission on Human Rights

ICAO International Civil Aviation Organization
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICCSt Statute of the International Criminal Court
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICJ International Court of Justice
ICJ Rep International Court of Justice, Reports of Judgments, Advisory
Opinions and Orders
ICLQ International and Comparative Law Quarterly
ICRC International Committee of the Red Cross
ICSID International Center for Settlement of Investment Disputes
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IJRL International Journal of Refugee Law
ILC International Law Commission
ILDC International Law in Domestic Courts
ILM International Legal Materials
ILO International Labour Organization
ILR International Law Reports
IMF International Monetary Fund
IOLR International Organizations Law Review
 xi

List of Abbreviations xi
JC&SL Journal of Conflict and Security Law
J Church & St Journal of Church and State
JICJ Journal of International Criminal Justice

LEFÖ Lateinamerikanische exilierte Frauen Österreich

LGBT Lesbian, gay, bisexual and transgender
LNTS League of Nations Treaty Series
Loy of L A Int’l Loyola of Los Angeles International and Comparative
  and Comp L Rev Law Review

MFA Ministry of Foreign Affairs

MoU Memorandum of Understanding
MPA Marine Protected Area

NATO North Atlantic Treaty Organization

NGO Nongovernmental organization

OAS Organization of American States

OAU Organization of African Unity
Ohio St J Disp Resol Ohio State Journal on Dispute Resolution
OSCE Organization for Security and Cooperation in Europe

PDS Private Domestic Staff

RBDI Revue belge de droit international

RGDIP Revue générale de droit international public

SCSL Special Court for Sierra Leone

S Ct Supreme Court Reporter
SDI Scottish Development International
SDNY US District Court, Southern District of New York
StGB Strafgesetzbuch
StPO Strafprozeßordnung
Suffolk Univ LR Suffolk University Law Review

TEU Treaty on European Union

Tex Int’l LJ Texas International Law Journal
TFEU Treaty on the Functioning of the European Union
TIAS Treaties and Other International Acts Series
Tul L Rev Tulane Law Review

UDHR Universal Declaration of Human Rights

UNCLOS United Nations Convention on the Law of the Sea
UN Doc United Nations Document
UNESCO United Nations Educational, Scientific and Cultural
Organization
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
UNJY United Nations Juridical Yearbook
UNSC United Nations Security Council
xi

xii List of Abbreviations

UNTS United Nations Treaty Series
UNYB Yearbook of the United Nations

VCCR Vienna Convention on Consular Relations

VCDR Vienna Convention on Diplomatic Relations
VCLT Vienna Convention on the Law of Treaties
Vienna Convention Vienna Convention on Diplomatic Relations

W&L Washington and Lee Law Review

WLR Weekly Law Reports
WPC Woman Police Constable
WTO World Trade Organization
ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
 xi

Notes on Contributors
Tamás Ádány, PhD, is Associate Professor at the Péter Pázmány Catholic University,
Budapest, and has been teaching International Law, International Criminal Law, Human
Rights, and the Law of Diplomatic Relations for more than a decade. He graduated as a law-
yer at master’s level in Budapest in 2000, holds a Master’s Degree in International Relation
from ASERI, Milan, and a PhD in International Law from the Péter Pázmány Catholic
University. His PhD thesis examined the jurisdiction of the International Criminal Court
from the perspective of general International Law of responsibility. In these fields, he has
authored and edited three books and several academic articles. As a visiting lecturer, he has
taught at the universities of Debrecen, San Francisco, and Nijmegen. He has also worked
for the Ministry of Justice and for the Office of the Prime Minister on International Law-​
related issues.
Yinan Bao, PhD, LLM, did his studies in diplomatic law at the School of Law, Politics
and Sociology, University of Sussex, and was awarded a PhD in November 2014 with a
thesis entitled ‘When An Old Principle Faces New Challenges: A Critical Analysis of the
Principle of Diplomatic Inviolability’. He had previously studied Public International Law
at the University of Leicester (2009–​2010), and obtained the degree of LLM in Public
International Law. Dr Bao’s major research interest is in diplomatic law, especially around
the issues related to the theory and practice of the principle of diplomatic inviolability. His
academic work includes among other things a study ‘On the Historical Evolution of the
Principle of Diplomatic Inviolability’ (Social Sciences Academic Press, China). He also has a
strong interest in legal issues relating to the law of the sea, settlement of international ter-
ritorial disputes and the recognition of States. He is currently doing post-​doctoral research
at the Centre for Rule of Law Strategy Studies, East China University of Political Science
and Law.
Sir Brian Barder, KCMG, BA (Cantab), is a former British Ambassador to Ethiopia,
Poland, and the Republic of Bénin, and former British High Commissioner to Nigeria and
Australia. He worked on decolonization in the Colonial Office in London for seven years
before transferring to the UK Diplomatic Service, serving at the UK Mission to the UN in
New York and in Moscow and Canberra, as Assistant Head of West African Department
and later Head of Southern African Department in the Foreign & Commonwealth Office,
before his head of mission appointments. After retirement from the diplomatic service he
was a founding member of the Special Immigration Appeals Commission, a chair of the
Civil Service Selection Boards and a Governor of the Royal Hospital for Neuro-​disabil-
ity. He is a contributor of many published articles, blog posts (<http://​www.barder.com/​
ephems > and elsewhere), and letters. He is an honorary visiting fellow at the University of
Leicester’s Department of Politics and International Relations. His book, What Diplomats
Do—​The Life and Work of Diplomats, was published in July 2014 (paperback edn, Rowman
& Littlefield 2015).
J Craig Barker, PhD, LLB, is Professor of International Law and Dean of the School of
Law and Social Sciences at London South Bank University. His primary research interest is
in the field of Public International Law and he is co-​author of The Encyclopaedic Dictionary
of International Law. His interest in diplomatic law and the Vienna Convention dates back
xvi

xiv Notes on Contributors

to his PhD thesis which he completed at the University of Glasgow in 1991 on the topic
of ‘The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil?’, a modified
version of which was published by Ashgate in 1996. He has subsequently written on vari-
ous aspects of diplomatic law including a further monograph entitled The Protection of
Diplomatic Personnel and a number of articles in leading journals including, most recently,
an article celebrating the life of Raoul Wallenberg entitled ‘The Function of Diplomatic
Missions in Times of Armed Conflict or Foreign Armed Intervention’ in the Nordic Journal
of International Law. He has also written on other examples of immunity from jurisdiction,
including State and Head of State immunity. He has recently been researching the alleged
conflict between the law of international immunities and human rights, as well as issues of
responsibility in International Law.
Paul Behrens, PhD, LLM, is a Reader (Associate Professor) in Law at the University of
Edinburgh, where he has established the LLM course on Diplomatic Law and is also
responsible for an LLM course on International Criminal Law. He has taught in the past at
the University of Leicester and has been a Visiting Lecturer/​Visiting Researcher at Uppsala
(Sweden), Stockholm (Sweden), Kiel (Germany), and other universities. Dr Behrens is
author of the monograph Diplomatic Interference and the Law (Hart Publishing 2016) and
has written articles and papers on various aspects of diplomatic law. His recent publica-
tions include ‘ “None of their Business?” Diplomatic Involvement in Human Rights’ in
Melbourne Journal of International Law (2014). He has also published in the field of inter-
national criminal law and is co-​editor of the books The Criminal Law of Genocide (Ashgate,
2007) and Elements of Genocide (Routledge, 2012). Dr Behrens also contributes regularly
to newspapers (including The Guardian, The Scotsman, Süddeutsche Zeitung) on issues of
international law and constitutional law and has given media interviews on these topics.
Kai Bruns, PhD, MA, is Assistant Professor of Political Science at the School of Arts
& Sciences at the American University of Ras Al Khaimah (United Arab Emirates). He
received his PhD in the field of Diplomatic Studies from Keele University (UK). In his
research, he analysed Britain’s influence on the negotiations of the 1961 Vienna Convention
on Diplomatic Relations. His primary research interests include the codification of diplo-
matic law including the work of the International Law Commission and the negotiation
process at United Nations diplomatic conferences of plenipotentiaries. In 2014, he pub-
lished A Cornerstone of Modern Diplomacy—​Britain and the Negotiation of the 1961 Vienna
Convention on Diplomatic Relations within Bloomsbury’s Key Studies in Diplomacy series
(now Manchester University Press). Further research interests include the legal dimen-
sions of the peaceful coexistence debate during the 1960s and the negotiations of the 1973
Protection of Diplomats Convention.
Naomi Burke, PhD, LLM, is an Associate Legal Officer at the International Tribunal for
the Law of the Sea. Prior to taking up this position, she was the Arthur Watts Research
Fellow in Law of the Sea at the British Institute of International and Comparative Law. Dr
Burke holds an LLB from Trinity College Dublin, a Masters from IEP Paris (Sciences Po)
specializing in conflict and security studies, an LLM from NYU School of Law, and a PhD
from the University of Cambridge. Dr Burke has previously worked in private practice at a
boutique law firm specializing in public international law. She has also worked at the Legal
Department of the Irish Ministry of Foreign Affairs, as a clerk at the International Court of
Justice, and as a research assistant at the International Law Commission.
Graham Butler, PhD, LLM, BA, is Assistant Professor of Law at Aarhus University,
Denmark. He has been a member of Centre for Comparative and European Constitutional
 xv

Notes on Contributors xv
Studies at the Faculty of Law, University of Copenhagen, and affiliated to the Faculty of
Law, University of Iceland in Reykjavík. He wrote his doctorate on the constitutional lim-
its of the European Union’s Common Foreign and Security Policy (CFSP). In Aarhus,
Copenhagen, and Reykjavík, he has taught several courses on European Union law, EU
external relations law, international law, European integration, and diplomatic law, and
has published a number of articles in the fields, primarily centring on CFSP and its various
legal challenges from national, European, and international perspectives. Dr Butler previ-
ously worked in Dáil Éireann (Chamber of Deputies) at the Houses of the Oireachtas (Irish
Parliament) in Dublin, Ireland.
Francesca Dickson, BSc Econ, MSc Econ, is a PhD candidate and President’s Scholar
with Cardiff University’s Wales Governance Centre. Her research currently focuses on the
diplomacy of sub-​State governments in Wales, Bavaria, and Scotland. She has a broader
interest in the diplomatic practices of non-​State actors, and recently co-​convened an
ESRC sponsored international workshop on this theme at Cardiff University entitled
‘the Diplomacy of Monsters’. She is also involved in an on-​going project with Edinburgh
University’s Department of Politics and International Relations, considering the secur-
ity and foreign policy implications of increasing Scottish autonomy. Some of her most
recent work has examined the relationship between sub-​State diplomacy and multi-​level
governance and was published in Geography Compass (2014), ‘The Internationalisation
of Regions: Paradiplomacy or Multi-​Level Governance’. She is a regular commentator
on the UK’s devolved and constitutional politics, and teaches on political science and
Welsh politics.
Sanderijn Duquet, LLM, has studied Law and International Legal Studies at Ghent
University and at American University Washington College of Law and is currently
a doctoral research fellow at the Leuven Centre for Global Governance Studies and the
Institute for International Law, University of Leuven, Belgium. As a fellow of the Research
Foundation Flanders (FWO), she is preparing a PhD on the contribution of the European
Union to international diplomatic and consular law. She has published on topics such as
diplomatic and consular law, EU external relations, foreign direct investment, and informal
international law-​making. Ms Duquet has (co-)authored journal articles on the EU’s diplo-
matic and consular relations in The Hague Journal of Diplomacy (2012, 2018), the European
Foreign Affairs Review (2014), and the European Law Review (2015). She has also examined
the Vienna Conventions on Diplomatic and Consular Relations in a book chapter for The
Oxford Handbook of Modern Diplomacy (OUP, 2013).
Alison Duxbury, PhD, LLM, is a Professor at Melbourne Law School, University
of Melbourne. She is also a member of the International Advisory Commission of the
Commonwealth Human Rights Initiative and the Board of Directors of the International
Society for Military Law and the Law of War. Professor Duxbury’s major research interests
are in the fields of International Institutional Law, Human Rights Law, and International
Humanitarian Law. Her publications include The Participation of States in International
Organisations:  The Role of Human Rights and Democracy (CUP, 2011)  and the Oxford
Bibliographies in International Law entry, ‘International Organisations’ (OUP, 2012). She
is also co-​editor of Military Justice in the Modern Age (CUP, 2016). Professor Duxbury
has been a visiting fellow at the Institute of Commonwealth Studies at the University of
London, the Lauterpacht Centre for International Law at the University of Cambridge, the
Centre for Comparative and Public Law at the University of Hong Kong and the Oxford
Institute for Ethics, Law and Armed Conflict.
xvi

xvi Notes on Contributors

Juan E Falconi Puig, PhD, is Ambassador of the Republic of Ecuador to the World Trade
Organization. He was the Ecuadorian Ambassador to the Court of St James from 2013
to 2015. He is also one of the leading jurists in Ecuador, having been Judge pro tempore
at the Ecuadorian Supreme Court (1999) and the Superior Court of Justice of Guayaquil
(1985). He has been Professor of Civil Procedure at the Catholic University of Guayaquil
since 1975, where he was appointed Dean of the Law Faculty in 1984. Professor Falconi
is also Senior Partner and Owner of the Law Firm Falconi Puig Associates, in Guayaquil.
Prior to his appointment to London, he held several positions in Ecuador, including that of
Chairman of the International Chambers of Commerce of Ecuador (1992) and Secretary
of Industry and Trade (1991). He was Chairman of the Cartagena Agreement Commission
(1991); Arbitrator at the Board of Arbitration of the Guayaquil Chamber of Commerce
(1985); Minister-Secretary of Production in October 1999 and Bank Superintendent in
2000. He is the author of numerous publications, including Compañías: Su formación,
costos e índice alfabético de la Ley; Código de Procedineinto Civil, comentado y concordado;
Immunidad Parlamentaria; y, Estudios Procesales. In November 2016 he was appointed
Honorary Professor of The Catholic University of Guayaquil, Ecuador.
Patricio Grané Labat, LLM, is a Partner in the London Office of Arnold & Porter Kaye
Scholer LLP. He is both civil and common law-​trained. He studied International Law at
Georgetown University Law Center. Grané has extensive experience representing sover-
eign States and private parties in international dispute resolution proceedings (eg under
ICSID and WTO), as well as in non-​contentious matters under public international law.
He has acted as counsel in institutional and ad hoc arbitrations, including under ICSID,
UNCITRAL, LCIA, SCC, and ICC rules. He has advised sovereign States in contentious
and non-​contentious proceedings on several areas of international law, including sovereign
immunities. Prior to entering private practice in 2001, Grané served as a trade diplomat
and negotiator for the Republic of Costa Rica in Geneva, Switzerland, in the areas of WTO
dispute settlement, agriculture, trade in goods, market access, and other rules-​related issues.
Grané has been Adjunct Professor at the Georgetown University, Edmund A Walsh School of
Foreign Service, and Adjunct Professor of Law at Georgetown University Law Center, where
he lectured on dispute resolution under international trade and investment agreements.
Nelson Iriñiz Casás, PhD, participated as a diplomat in various international confer-
ences and was inter alia the Uruguayan delegate at the Vienna Conference on Diplomatic
Relations in 1961, where he was elected Vice President of the Plenary Commission that
was responsible for redacting the text of the VCDR. He began his studies in Uruguay and
finished them at the University of Vienna, where he was awarded his PhD in Philosophy.
He was also lecturing at the University of Vienna on social and economic issues in Latin
America. He started his political career at the age of seventeen, joining the National Party
of Uruguay, and was soon awarded a prize for his excellent oratorical skills. Dr Iriñiz Casás
began his career as a diplomat in 1954, working in Austria (1954–​1958 and 1961–​1962),
Czechoslovakia (1959), Hong Kong (1962–​1965), Denmark (1965–​1967), and Sweden
(1966–​1967). He is also the author of numerous books and articles (including Korruption
in der UNO, Econ Verlag 1970). In addition to his diplomatic career, he has been active in
Uruguayan politics and in the fight against corruption.
Péter Kovács, PhD, LLM, is a Judge at the International Criminal Court. He is also
Professor of Public International Law at the Péter Pázmány Catholic University and has
worked as a professor of Public International Law at Miskolc University. He gained his
academic expertise at the University Attila József, Centre Européen Universitaire, Institut
 xvi

Notes on Contributors xvii

International des Droits de l’Homme and Miskolc Law Faculty in various fields such as
Community Law, International Law, Comparative Law, and Humanitarian Law. He has
been Invited Professor at Montpellier University, Paris IX, Paris II, Nantes University,
Universität Regensburg (Summer University of the Law Faculty), and as Visiting Professor
with Fulbright scholarship at Denver University, College of Law. Professor Kovács has also
worked at the Hungarian Ministry for Foreign Affairs, where he was first secretary at the
Embassy in Paris and Head of the Department of Human Rights and Minority Law. From
2005 to 2014, he was a judge of the Constitutional Court, where he was the President of
the First Chamber from 2013. Professor Kovács’ main research interests are in the areas
of Minority Protection, Human Rights, Humanitarian Law, International Jurisprudence,
History of International Law, and Schengen cooperation.
Lisa Rodgers, PhD, PG Cert, BA (Hons), is a Lecturer in Law at the University of Leicester.
Her main research interest is labour law, and in particular the European and international
dimensions of this subject. Her most recent research concentrates on the interaction
between diplomatic law and State immunity, and access to justice for employment litigants.
Dr Rodgers has written various academic articles, including ‘Immunity and the Public/​
Private Boundary in EU Employment Law’ (European Labour Law Journal ), and is author
of the book Labour Law, Vulnerability and the Regulation of Precarious Work (Edward Elgar,
2016). In 2014, Dr Rodgers was awarded a grant from the Association of Commonwealth
Universities to present her research to an international audience at HEC Montreal, Canada.
Dr Rodgers also conducts peer reviews for the E-​Journal of International and Comparative
Labour Studies and the Industrial Law Journal.
Wolfgang Spadinger, PhD, is the Austrian Consul General in Milan. Before this posting,
he was Director of Privileges and Immunities of the Austrian Federal Ministry for Europe,
Integration and Foreign Affairs. Dr Spadinger has studied in Innsbruck and Tübingen and
holds a Doctorate in Law. His thesis focussed on European Union competition law. During
his diplomatic career, he has held various positions such as Head of Unit of International
Cooperation in Drug Control, Crime Prevention and Counter-​Terrorism, and positions
as Deputy Head of Mission at the Austrian Embassies in Madrid, Ottawa, and Sofia. He
was the Austrian negotiator for the United Nations Convention against Corruption and
represented his country in the 2005 UN Crime Congress in Bangkok. In addition to his
diplomatic position he teaches diplomatic law and protocol at the Diplomatic Academy in
Vienna.
Simonetta Stirling-​Zanda, LLM, PhD, worked as a researcher and lecturer on Public
International Law at the University of Edinburgh from 1992 to 2014. She completed all
her studies at Geneva University. She did her LLM in Company Law and International
Law. Based on her doctoral research she published a monograph examining and compar-
ing the application of customary law in the domestic courts of fifteen European countries,
L’application judiciaire du droit international coutumier: étude comparée de la pratique euro-
péenne. Dr Stirling-​Zanda has also been a reporter for the Oxford International Law Reports.
She has taught human rights at the Wallenberg Institute in Lund (2000–​2007), as a visiting
lecturer within the framework of the Socrates teaching exchange. Dr Stirling-​Zanda’s teach-
ing and research have been essentially directed to analysing how individuals are allowed to
benefit in their own State from the protection of international law and in particular from
customary law. She is particularly interested in analysing relations of legal systems and the
relationship between human rights and general norms of international law.
xvi

xviii Notes on Contributors

Sana Sud, BA, LLB, earned her Bachelor’s in law and arts from Symbiosis Law School, India.
She has a keen interest in Human Rights and International Law. She has authored various
papers, such as ‘Cybercrime and Women’ (presented at a conference on Empowerment of
Women) and an essay titled ‘International Humanitarian Law Implementation in Non-​
International Armed Conflict in South Asia’ for the International Committee of the Red
Cross. Miss Sud has also been named the best contributor to the human rights cell, a stu-
dent organization of Symbiosis Law School working for human rights. She has interned
with various organizations a few of which are the United Nations High Commissioner for
Refugees, National Human Rights Commission, Commonwealth Human Rights Initiative,
and Lawyers’ Collective. Sana holds a certificate for European legal studies and a diploma in
International Law and Human Rights.
Jan Wouters, PhD, LLM, is Full Professor of International Law and International
Organizations, Jean Monnet Chair ad personam EU and Global Governance, and found-
ing Director of the Institute for International Law and of the Leuven Centre for Global
Governance Studies, an interdisciplinary research centre with the status of Jean Monnet
Centre of Excellence, at the University of Leuven (KU Leuven). He is a Visiting Professor at
the College of Europe, SciencesPo, LUISS, and an Adjunct Professor at Columbia University.
He is a Member of the Royal Academy of Belgium for Sciences and Arts, is President of the
United Nations Association Flanders Belgium, and practises law as Of Counsel at Linklaters,
Brussels. He is Editor of the International Encyclopedia of Intergovernmental Organizations,
Deputy Director of the Revue belge de droit international, and an editorial board member
in ten other international journals. He has published widely on international and EU law,
international organizations, global governance, and financial law.
 1

Part I
Introduction
2
 3

1
Diplomatic Law in a New Millennium
Paul Behrens

A new millennium carries the promise of change. That applies to the domestic area
as well as to relations among States. At least in terms of technological advances—​
and their recognition by actors on the international stage—​the twenty-​first cen-
tury does not disappoint. In the few years of its existence, it has already revealed
itself as the age of videoconferencing and Skype; of smartphones and Whatsapp.
Messages are sent within fractions of a second around the globe; answers received
in as little time as if the correspondent were standing in the same room.
And yet, for all the progress achieved in the field of communication, the signifi-
cance of the diplomatic office has not diminished, and there appears to be little appe-
tite to replace diplomatic agents with IT technicians. The United States maintains
more than 300 diplomatic missions and consulates around the world;1 the British
Foreign and Commonwealth Office notes that it employs ‘over 14,000 people in
nearly 270 diplomatic offices’.2 In light of that, Denza’s view that certain provisions
of the Vienna Convention on Diplomatic Relations (VCDR)—​the ‘basic law’ of
diplomatic relations today—​have ‘drastically cut the armies’ of those entitled to
diplomatic privileges,3 requires qualification. It is a position that may have validity
with regard to certain restrictions applying to diplomats at permanent missions;4
but it does not consider other factors: the existence of diplomats assigned to inter-
national organizations, for instance, the continued use of ad hoc diplomats and even
the increasing attempts of sub-​State entities to engage in international diplomatic
relations.
It should not come as a surprise: the maintenance of a permanent mission in other
States does, after all, carry substantial advantages which have not disappeared with the
advent of videoconferences—​most of all the possibility of gaining an insight into the
inner workings of the receiving State which only those agents of a State can hope to
provide who have gathered substantive expertise of the cultural and political framework

1  Amy Roberts, ‘By the Numbers: U.S. Diplomatic Presence’ CNN Online (10 May 2013) <http://​
edition.cnn.com/​2013/​05/​09/​politics/​btn-​diplomatic-​presence/​>.
2  Foreign and Commonwealth Office (UK), ‘About Us’ <https://​www.gov.uk/​government/​organi-
sations/​foreign-​commonwealth-​office/​about>.
3  Eileen Denza, Diplomatic Law (4th edn, OUP, Oxford 2016) 4.
4  As, for example, in the context of the more restrictive concept of the Ambassador’s ‘suite’ (VCDR
art 37), which Denza (n 3) 4 highlights.

Diplomatic Law in a New Millennium. Paul Behrens. © Paul Behrens, 2017. Published 2017 by Oxford
University Press.
4

4 Diplomatic Law in a New Millennium

within which their hosts operate. To sub-​State entities and entities which are not uni-
versally recognized as States, the exchange of official representatives also sends out a
message of considerable importance: it lends strong support to their position that they
are serious players in the international field and deserving of recognition by members
of the international community. For a range of reasons, therefore, the institution of the
diplomatic mission enjoys undiminished popularity in the twenty-​first century.
Yet with popularity come problems. The proliferation in the number of diplo-
matic personnel and diplomatic activities also increases the potential for tension, and
more and more situations arise in which the debate about the contours of diplomatic
privileges and immunities and about the duties which they owe to the receiving State
becomes relevant. In the last few years, questions concerning the inviolability of dip-
lomatic communications have likewise come to the fore—​following the revelations
of activities of intelligence services monitoring the computer networks of diplomatic
missions,5 and following also the publication of embassy cables by WikiLeaks—​a
matter which received judicial consideration in the United Kingdom.6 The very char-
acter of the diplomatic office can still be in doubt, as the Juffali incident has shown: a
2016 case in which the Court of Appeal of England and Wales had to decide whether
a person who had been appointed as Permanent Representative to an international
organization but had not carried out any functions of his office was entitled to immu-
nity.7 The institution of diplomatic asylum continues to cause uncertainty: at the time
of writing, the activist Julian Assange is still resident in the embassy of the Republic
of Ecuador in London, where he had been granted asylum more than four years ago,
and the dispute with the receiving State on this matter is unresolved.8
Developments of this kind highlight the fact that the difficulties which arise in
modern diplomatic relations are not limited to problems on a factual or political
level. They are challenges which concern matters of legal interpretation—​and at
times, even the identification of applicable legal norms to begin with.
In this area of international law, this may seem surprising: diplomatic law, after
all, can lay claim to being one of the oldest branches of international law, and one
may have expected that the difficulties in its path would have been addressed at
some stage in its development. And it is certainly true that the history of diplo-
matic law reaches far beyond the days of the adoption of the VCDR in 1961, and
that centuries of diplomatic relations gave opportunity to debate at least some of
the problems which are of relevance today.
The roots of the diplomatic office have indeed been traced to the practice of
Greek city States and to ancient India,9 although permanent diplomatic missions

5  Laura Poitras, Marcel Rosenbach, Holger Stark, ‘Codename “Apalachee”: How America Spies on
Europe and the UN’ Der Spiegel (26 August 2013).
6  Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708.
7  Al-​Juffali v Estrada and Another [2016] EWCA Civ 176.
8  On the Assange case, see Paul Behrens, ‘The Law of Diplomatic Asylum –​A Contextual Approach’
(2014) 35 Michigan Journal of International Law 319–​67; Maarten den Heijer, ‘Diplomatic Asylum
and the Assange Case’ (2013) 26 Leiden Journal of International Law 399–​425.
9  Eileen Young, ‘The Law of Diplomatic Relations’ (1964) 40 BYIL 141, 142.
 5

Diplomatic Law in a New Millennium 5

appear to have become common only in the Early Modern Age.10 In the absence of
codification on an international scale (and indeed of international institutions cap-
able of promoting this process), it fell to scholars to advance the rules in the field.
Some of the leading authorities on the law of nations contributed to that effort—​
including Alberico Gentili, who advised the English government in the famous
Throkmorton incident of the 1580s (a situation arising from a plot to overthrow
the rule of Elizabeth I—​the Spanish Ambassador to England, Don Bernardino de
Mendoza, played a role in that affair).11 Grotius, one of the fathers of international
law, wrote in his seminal work De Iure Belli ac Pacis extensively about the ‘Right
of Legation’.12 In the eighteenth century, the works of Cornelius Bynkershoek,
President of the Supreme Court of the Netherlands,13 and of Emmerich de Vattel14
made significant contributions to the development of the law in this field.
To the development, but also to the identification of the law: for at that stage,
a principal task of scholars of the discipline was still the establishment of the rules
as they appeared from the practice of States. ‘In Vattel’, writes Young, ‘customary
law [on diplomatic relations] . . . developed as far as it was ever to do unaided’.15
These efforts, and the sheer wealth of material on the subject area that existed
even at the end of the eighteenth century, lend support to the view that the rules
of diplomatic law were fairly well settled even then and certainly by the time the
drafting of the VCDR was undertaken.
With regard to particular aspects of the law, this might even be an accurate
assessment.
It is, for instance, true that the foundations of diplomatic immunities had
been the object of debate for a long time. Over the years, three principal theories
emerged which provided a rationale for the existence of immunities:16 The the-
ory of exterritoriality (the view that the beneficiaries of diplomatic privileges and
immunities are considered to be ‘outside’ the territory of the receiving State) is
frequently traced back to Grotius,17 who had indeed spoken of a ‘fiction’ under
which ambassadors ‘were held to be outside of the limits of the country to which
they were accredited’.18
Yet Grotius had also referred to another consideration to characterize the dip-
lomatic office. Ambassadors, in his view, were also ‘as if by a kind of fiction […]

10  Young refers in this regard to Florence and other Italian cities which, from the fifteenth century
onwards, adopted a system of permanent diplomatic missions, ibid 145 and see Ivor Roberts (ed),
Satow’s Diplomatic Practice (OUP, Oxford 2009) 9.
11 See Paul Behrens, ‘Diplomatic Interference and Competing Interests in International Law’
(2012) 82 BYIL 181.
12  Hugo Grotius, De Iure Belli ac Pacis (1625). For a translation, see Hugo Grotius, De Jure Belli ac
Pacis Libri Tres (Francis Kelsey tr, Clarendon Press, Oxford 1925).
13  Cornelius van Bynkershoek, De Foro Legatorum (1721). For a translation, see Cornelius van
Bynkershoek, De Foro Legatorum Liber Singularis (Gordon Laing tr, Clarendon Press, Oxford, 1946).
14  Emer de Vattel, Le Droit de Gens (1758). For a translation, see Emmerich de Vattel, The Law of
Nations or the Principles of National Law (Charles Fenwick tr, Carnegie Institution, Washington 1916).
15  Young (n 9) 164.
16  See on the whole matter ILC Secretariat, ILC Yearbook 1956 vol II, 157–​61.
17  ibid 157, para 209; Roberts (n 10) 98. 18  Grotius (Francis Kelsey tr) (n 12) 443.
6

6 Diplomatic Law in a New Millennium

considered to represent those who sent them’.19 This is an early reference to what
would become known as the theory of the ‘representative character’:20 diplomats
are representatives of independent States, and their immunities derive from the
fact that the sovereignty of their masters has to be respected.21
Exterritoriality and representative character are joined by a third theory:  the
theory of ‘functional necessity’, which considers the basis of immunity to lie in the
fact that diplomatic agents must be enabled to fulfil the functions of their office
abroad.22 That, too, is a position which can look back on a long history: Vattel is
referred to as one of its strongest supporters,23 but its roots have been traced even
to the sixteenth and seventeenth centuries.24
Yet it is not only the formulation of the theories, but also the identification of
their respective strengths and weaknesses that had taken place at a comparably
early stage: Vattel’s contemporary Bynkershoek, for instance, had already voiced
his criticism of both the theory of functional necessity and that of the representa-
tive character.25
The International Law Commission (ILC) was therefore able to rely on a wide
range of materials and to reflect on centuries of debate when it had to consider the
theoretical underpinnings of a significant part of its articles on diplomatic law (the
Vienna Convention itself was informed both by the theory of functional neces-
sity and the theory of the representative character,26 very much at the expense of
exterritoriality27).
And this is not the only issue which had been a matter of discussion for a long
time. The diplomatic functions, for instance, to which Article 3 VCDR today
makes reference, had, to a significant degree, already been recognized in existing
State practice.28 The diplomatic duty not to interfere in the internal affairs of the
receiving State (and its violation) had given rise to scholarly debate almost from the
beginning of the establishment of permanent diplomatic missions.29 Vattel’s Droit
de Gens takes up issues as detailed as the question of immunities to be accorded to
diplomats who were nationals of the receiving State and exemption from taxation
(including the question of indirect taxes).30

19 ibid. 20  See ILC Secretariat (n 16) 158–​60, paras 218–​27.

21  ibid and see Clifton E Wilson, Diplomatic Privileges and Immunities (University of Arizona Press,
Tucson 1967) 1.
22  See on this ibid 17, 18. 23  Young (n 9) 164. 24  Wilson (n 21) 17.
25  Young (n 9) 161.
26  ILC Yearbook 1958 vol II, 95, Section II, General Comments, para 3; United Nations
Conference on Diplomatic Intercourse and Immunities, Vienna 2 March–​14 April 1961, Official
Records, Vol I: Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole, UN
Doc A/​CONF 20/​14 (hereinafter ‘Vienna Conference Records Vol 1’), 131, para 18 (Tunkin), and
see VCDR, preamble, para 4.
27  ILC Yearbook 1958 vol II, 95, Section II. General Comments, para 3 and see Vienna Conference
Records Vol 1, 155, para 32 (Krishnan Rao).
28  Denza (n 3) 29.
29  See text to n 11 above on the Throkmorton incident. The locus classicus of diplomatic inter-
ference is, even today, frequently considered to be the Sackville incident of 1888. Paul Behrens,
Diplomatic Interference and the Law (Hart Publishing, Oxford 2016) 27, 28.
30  Young (n 9) 164–​66.
 7

Diplomatic Law in a New Millennium 7

Debate, however, is not the same as recognition, and the realization by some
scholars that a problem exists, does not by itself mean that consensus within the
international community on its solution can be established. Codification, in fact,
proved to be a surprisingly stony path for the matter of diplomatic law.
Its beginnings on an international level can be traced to the conclusion of the
Congress of Vienna in 1815, which saw the adoption of an instrument regulating
aspects of diplomatic law for a multitude of States.31 But the topical area which
the Vienna Regulations—​along with a second instrument, concluded three years
later32—​addressed remained narrow: they were limited to questions of rank and
precedence among diplomatic representatives.
The first attempts to achieve a comprehensive codification of diplomatic law
were, again, scholarly undertakings: draft codes written by experts on international
law. As such, they had no binding authority, but several of their rules can be held
to reflect customary law as it existed at that time. From the earliest of these codes
(Bluntschli, 1868)  to the last major private project—​the Harvard Law School
Draft Convention on Diplomatic Privileges and Immunities (1932)33—​they were
initiatives whose considerations of various aspects of diplomatic law were to exert
influence on the thinking of scholars in the field, and often enough to have an
impact on the later drafting of the VCDR itself.34
Codification through treaty law, however, proved to be a more sluggish proced-
ure. In 1927, the League of Nations had drawn up a list of seven subjects which it
considered ‘ripe’ for codification—​among them, the topic of diplomatic privileges
and immunities.35 But the project was not successful: later in the same year, the
Assembly decided that the subject should not be retained for codification, as it
seemed difficult to reach universal agreement and as it was not considered a matter
of priority.36
The inter-​war period, however, also saw the signing of the Havana Convention
on Diplomatic Officers (1928), which later entered into force with the partici-
pation of several American States. While being a relatively short instrument (the
Convention has only twenty-​seven articles), it included provisions on a wide range

31  Congress of Vienna, Règlement sur le rang entre les agents diplomatiques (19 March 1815), Annex
XVII of the Acts of the Congress, 2 (1814–​1815) British and Foreign State Papers 179.
32  Protocole de la Conférence, tenue à Aix-​la-​Chapelle (21 November 1818) 5 (1817–​1818) British
and Foreign State Papers 1090.
33  For a reproduction of the draft codes, see (1932) 26 AJIL Supp 19–​187.
34  See, in particular, Young (n 9) 176. 35  ILC Secretariat (n 16) 136.
36  League of Nations, Report of the First Committee to the Assembly, Progressive Codification of
International Law, League of Nations Doc A.105.1927.V (23 September 1927) 2. In 1928, the League
of Nations also abandoned an initiative to engage in a ‘revision of the classification of diplomatic
agents’ when it was found that international codification of this topic would not be realizable. League
of Nations, Committee of Experts for the Progressive Codification of International Law, Second Report
to the Council of the League of Nations on the Questions Which Appear Ripe for International Regulation,
League of Nations Doc A.15.1928.V (27 June 1928) 6. See also ILC Secretariat (n 16) 136 et seq for
an examination of the work done by the Committee of Experts and its Sub-​Committee. For more
details on the work of the League of Nations in that regard, see Chapter 5.
8

8 Diplomatic Law in a New Millennium

of topics, including immunity from civil and criminal jurisdiction, termination of
the mission, and obligations of diplomatic agents.37
After the Second World War, the United Nations returned to the question of
the codification of diplomatic law. The ILC began its debates on a code on dip-
lomatic intercourse and immunities in 1957, based on a draft which its Special
Rapporteur, the Swedish Judge Sandström, had prepared.38 In the same year, a
first set of draft articles was issued and States were given the opportunity to pro-
vide comments on it. The ILC took these statements into account when it revis-
ited the topic in 1958, and a second set of articles was produced in that year and
published, together with the ILC’s own commentaries.39 It was to form the basis
of the debates at the Vienna Conference—​the meeting of State delegates which,
from 2 March to 14 April 1961, negotiated the text of the Vienna Convention on
Diplomatic Relations.40
In spite of its difficult beginnings, it is tempting to consider the eventual codifi-
cation of diplomatic law a remarkably successful undertaking. Agreement within
the international community, which seemed so hard to establish in the days of the
League of Nations, now appeared to be overwhelming. Not only did the drafting
work proceed in record time (it took the ILC merely two years, and the conference
forty-​four days to deliberate the relevant texts), but the Convention itself was able
to enter into force barely three years after its adoption. Today, it has no less than
190 parties, which allows the VCDR to join the ranks of those rare instruments
that can lay claim to nearly universal acceptance. This wide-​ranging appeal of the
subject matter, which transcends political and cultural barriers, had been apparent
even at Vienna, when delegates, for a brief span of time, were able to set aside the
divisions of the Cold War to cooperate on the construction of a text whose influ-
ence would be felt around the world.41
Following the adoption of the final text at Vienna, the influence of the
VCDR was soon felt in related areas of the law. The solutions found by the
drafters of the treaty were, in a range of instances, also accepted by the 1963
Vienna Convention on Consular Relations (VCCR),42 the 1969 Convention
on Special Missions (CSM),43 and the 1975 Convention on the Representation
of States in their Relations with International Organizations of a Universal

37 Convention on Diplomatic Officers (adopted 20 February 1928, entry into force 21 May
1929) 155 LNTS 259.
38  ILC Yearbook 1955 vol II, 9–​12.
39  ILC Yearbook 1958 vol II, 89. For more details on the ILC’s work and procedure, see Chapter 5.
40  For details on the proceedings at Vienna, see Chapters 4 and 5.
41  The conference brought together delegates from States whose political systems ranged from
those of Communist States to Franco’s Spain; but even between delegates from those States, agreement
was possible and indeed actively sought. See, for instance, Vienna Conference Records Vol 1, 136,
paras 31 (Zabigailo, Ukraine) and 32 (De Erice y O’Shea, Spain).
42  Vienna Convention on Consular Relations (adopted 24 April 1963, entry into force 19 March
1967) 596 UNTS 261.
43 Convention on Special Missions (adopted 16 December 1969, entry into force 21 June
1985) 1400 UNTS 231.
 9

Diplomatic Law in a New Millennium 9

Character (CRSIO).44 Some rules enshrined in the later instruments even

employed the same wording that the VCDR had provided,45 lending further
support to the view that the 1961 treaty had been a remarkably successful
undertaking.46
Diplomatic law has also gained the reputation of being a branch of international
law that ‘works’ in practice. That may be true at least of some of its core aspects: State
measures (as opposed to private actions) which breach diplomatic inviolability, for
instance, have become a comparably rare phenomenon in contemporary international
relations.47
Reciprocity—​and the fear of reciprocal treatment—​carries a good part of the
responsibility for this. Receiving States are typically sending States as well, and there
is a perceived danger that the treatment which diplomats from another State receive
in their territory will be taken as a basis for measures against their own diplomats
abroad. The original concept of reciprocity embraced a distinct positive component
as well: prior to the conclusion of the VCDR, the granting of privileges and immuni-
ties to one’s own diplomats was seen by certain States as justification for affording the
same rights to diplomats from the relevant sending States.48 In modern diplomatic
relations, however, the principle of reciprocity tends to enter public awareness in par-
ticular in its negative form: most prominently, when expulsions of diplomatic agents
lead to tit-​for-​tat measures by the sending State.
Yet in spite of the considerable progress made since the inception of diplomatic
law and since codification efforts had begun, it would be wrong to think of this part
of international law as a well-​settled system that has found answers for all questions
which the practice of diplomatic relations encounters.
Large areas which are of decisive importance for the conduct of modern dip-
lomatic relations were outside the remit of the VCDR from the beginning. That
includes relations with international organizations which are an indispensable ele-
ment of diplomacy in the twenty-​first century. Even the CRSIO, concluded four-
teen years after the VCDR, addresses only a limited aspect of this part of the law;49
and the fact that that instrument, more than forty years after its adoption, has not

44 Vienna Convention on the Representation of States in their Relations with International

Organizations of a Universal Character (adopted 13 March 1975; not yet in force) UN Doc A/​
CONF 67/​16.
45  See Chapter 20, section 1.
46  See, however, for a critical view of that point, Chapter 20, in particular section 2.
47  But not unheard of. Uganda, for instance, asserted in the Armed Activities case that the right to
personal diplomatic inviolability had been breached by the Democratic Republic of Congo, referring
to an incident in 1998 in which Congolese soldiers had stormed her embassy in Kinshasa, threatened
the Ambassador and mistreated Ugandan diplomats at N’djili International Airport. The International
Court of Justice (ICJ) agreed that the evidence for the allegations was sufficient and found that the
DR Congo had indeed breached her obligations in that regard. Case Concerning Armed Activities on
the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168, paras 307,
308, 338, 340. See also Case Concerning United States Diplomatic and Consular Staff in Tehran (United
States v Iran) [1980] ICJ Rep 3, paras 17, 73–​74. For cases of State action arising during the Cold
War, see Wilson (n 21) 62–​72.
48  Wilson (n 21) 32, 33. 49  See, in particular, CRSIO art 2.
10

10 Diplomatic Law in a New Millennium

yet entered into force, is reflective of the prevailing controversies in the field.50
The years following the conclusion of the VCDR saw an increasing involvement
in diplomatic activities by other actors for which the traditional system had not
been designed. That includes the External Action Service of the European Union
and the system of (at the time of writing) 139 delegations maintained by the EU.51
But it also includes sub-​State entities which have emerged as an important force in
modern diplomatic relations and which at times operate a significant network of
missions in various parts of the world.52
Even within the system which the VCDR expressly addresses—​that of inter-​
State diplomatic relations, carried out through permanent diplomatic missions—​
there are significant fields which are marked by uncertainty and controversy. Some
areas were deliberately omitted from codification: most prominently, the field of
diplomatic asylum, whose status under international law continues to raise ques-
tions in contemporary international law.53 A suggestion to allow the drafting work
of the ILC to embrace this question, had been made in the Sixth Committee of
the General Assembly,54 but the majority of Committee members felt that it was a
topic that should more appropriately be considered under the ‘general question of
asylum’.55 Up to the present day, the international community has not been able
to agree on a binding instrument on diplomatic asylum.56
In other fields, the wording of the VCDR remained vague, even though the
resulting uncertainty—​and in some cases, even the potential for conflict—​had
been foreseeable to the drafters. The question of immunity to be granted to the
family of the diplomatic agent, for instance, had been a matter of concern to
sending and receiving States for a long time—​and certainly from the seventeenth
century onwards.57 At the 1961 Vienna Conference, several proposals had been
made to clarify the concept of ‘family’.58 Yet the text which found approval in the
Conference, merely referred to ‘members of the family of a diplomatic agent form-
ing part of his household’,59 thus retaining the uncertainty of the term and the
potential for considerable disagreement on its interpretation.60

50  The CRSIO requires the deposit of thirty-​five instruments of ratification to enter into force,
CRSIO art 89(1). At the time of writing, thirty-​four instruments had been deposited. United Nations
Treaty Collection, ‘Vienna Convention on the Representation of States in their Relations with
International Organizations of a Universal Character’ (30 November 2016) <https://​treaties.un.org/​
Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=III-​11&chapter=3&clang=_​en>.
51 European Union External Action, ‘About the European External Action Service’ (1 March
2016) <https://​eeas.europa.eu/​headquarters/​headquarters-​homepage/​82/​about-​the-​european-​exter-
nal-​action-​service-​eeas_​en>.
52  See Ministère des Relations Internationales et de la Francophonie (Québec), ‘Offices abroad’ (24
November 2016) <http://​www.mrif.gouv.qc.ca/​en/​ministere/​representation-​etranger>.
53  For the ongoing relevance of diplomatic asylum, see above n 8 and text to n 8.
54  See ILC Secretariat (n 16) 131, para 10.
55  ILC Yearbook 1957 vol I, 2, para 7 (paraphrasing by Sandström).
56  For the discussion of asylum in the ILC and subsequent developments, see Behrens (n 8) 322–​23.
57  See eg the 1654 case of Don Pantaleo de Sa, Young 154. According to Young, spouses and
children began to accompany Ambassadors only from the second half of the seventeenth century,
ibid 163.
58  For details, see Chapter 7, section 1 and Chapter 20, section 2.1.
59  VCDR art 37(1). 60  See on this, in particular, Chapter 7.
 1

Diplomatic Law in a New Millennium 11

Uncertainty also manifests itself through a phenomenon which diplomatic law

shares with other branches of international law: the fact that rules emanating from
various parts of the law of nations may have an impact on the same situation. The
application of the duty of diplomatic agents not to interfere in the internal affairs
of the receiving State—​ today enshrined in Article 41(1) VCDR—​frequently
results in situations of this kind: host governments will often claim that the duty
of non-​interference had been violated even in instances in which diplomatic
agents feel that they had the right, under international law, to make the relevant
representations—​based, for instance, on the interest which every State can claim to
have in the realization of a people’s right to self-​determination.61 Yet here, and in
other cases, the Vienna Convention does not resolve the situation: with regard to
this particular duty, it merely states that beneficiaries of privileges and immunities
‘also have a duty not to interfere in the internal affairs of that State’.62
The image that emerges from these considerations, differs in significant regards
from that which the reputation of the VCDR suggests. Neither the brevity of the
text nor the undeniable accessibility of its style nor its very extensive and very
speedy acceptance, mean that the 1961 instrument has served to resolve the prin-
cipal controversies in the field. Diplomatic law, instead, is marked by uncertainty,
by omissions (deliberate and otherwise) and by continuing disagreement regarding
some of its most important aspects.63
There is, therefore, room for a critical examination of the chief challenges that
contemporary diplomatic law encounters—​an examination which avails itself of
the instruments and the discourse which had not been available to writers of the
classical age of international law. Given the continued importance of the problems
in the field, the rise of new problems caused by societal and technological changes
and the emergence of new players in the field, such an analysis is not only a useful,
but a highly necessary initiative.
Diplomatic Law in a New Millennium is a study which explores some of the
most important issues in the field and seeks to provide solutions to the leading
controversies within the respective areas.
A first part offers introductory remarks on diplomatic law in general and the
VCDR in particular, both from the point of view of a practitioner (Chapter 2) and
of an academic expert on diplomatic law (Chapter 3). The second part is dedicated
to the historical development of diplomatic law, with a particular emphasis on the
codification history of the VCDR. It thus includes a chapter written by a former
delegate to the Vienna Conference (Chapter 4) and a chapter which focuses in
particular on the role of the ILC in the drafting of the blueprint for the Vienna
Convention (Chapter 5).
Parts III to V deal with specific aspects of contemporary diplomatic law which,
in general, fall within the remit of the VCDR, but which have given rise to con-
troversy ever since the adoption of the treaty. That includes the topic of personal

61  See on this Chapter 16. 62  VCDR art 41(1).

63  See on these points Chapter 20.
12

12 Diplomatic Law in a New Millennium

immunities (Part III); and it is in this context that exceptions to the personal
inviolability of diplomatic agents (Chapter  6), but also the elusive concept of
the family of members of the diplomatic mission (Chapter  7) are being dis-
cussed. The last two chapters of Part III consider diplomatic law in the context of
employment and thus discuss the inviolability of diplomatic agents in this field
(Chapter 8), but also the situation of private domestic staff in modern diplomatic
law (Chapter 9).
The discussion of personal immunity is followed, in Part IV, by an examin-
ation of property immunities—​an area which has given rise to much discussion
in recent instances—​not least, where the granting of asylum on mission prem-
ises was concerned. The first chapter of this part deals with certain exceptions to
premises immunity which have been discussed in the past (Chapter 10). This is
followed by a chapter on current developments relating to premises inviolability
(Chapter  11) and by a chapter on developments within the field of diplomatic
asylum (Chapter 12). But immunity in this field also attaches to certain matters
outside mission premises—​most prominently, to diplomatic correspondence and
the diplomatic bag—​issues which have gained particular relevance through recent
instances of infringements of the relevant inviolability and through court cases in
which these matters were examined. These aspects are investigated in the last two
chapters of that part (Chapters 13 and 14).
The last part which takes the VCDR as the basis of its discussions (Part V)
deals with a topic that frequently tends to be ignored in the analysis of diplomatic
law, but which carries considerable importance for diplomatic agents around the
world:  the subject of diplomatic duties. It thus comprises a chapter dealing in
general with obligations incumbent on diplomatic agents in the receiving State
(Chapter  15) and a chapter exploring the particular duty of non-​interference
(Chapter 16).
Part VI goes beyond the framework of the VCDR and explores the rules that
apply to actors on the diplomatic stage which move outside the traditional system
of inter-​State diplomatic relations. It thus investigates the position of international
organizations and their agents (Chapter 17), but also the increasing importance
of the European Union as an active player in the field, the position of its External
Action Service and of the missions it maintains around the world (Chapter 18).
The last chapter of this part is dedicated to sub-​State diplomacy: to the engagement
of entities that are non-​independent parts of sovereign States (such as Scotland and
Wales) in contemporary diplomatic relations (Chapter 19).
The final part (Part VII, Chapter 20) offers concluding reflections on the cur-
rent state of diplomatic law and on the position of the VCDR in particular. It thus
takes up the questions which the present chapter touched upon:  is the Vienna
Convention, more than fifty years after its entry into force, capable of dealing with
the challenges of diplomatic relations today? Are the difficulties which diplomatic
law encounters today rooted in inherent shortcomings of the VCDR or are they
due to an ever changing global situation which informs contemporary diplomatic
relations? And are there solutions to the salient problems which mark the current
field of diplomatic law?
 13

Diplomatic Law in a New Millennium 13

The current study thus brings together a wide range of topics, and it is not sur-
prising that they embrace different forms of discourse and, at times, even different
bases for the discussions to which they give rise. It is the more remarkable that, in
spite of this variety, common themes emerge—​at least on a fundamental level of
debate.
One of them is the continued importance of customary international law in
the field. In light of the proliferation of instruments on diplomatic law, this might
not have been an expected result: the significant efforts at codification may well
lead to the assumption that space for customary law is considerably restricted. Yet
the VCDR itself made reference to that source and affirmed that it ‘should con-
tinue to govern questions not expressly regulated by the provisions of the present
Convention’.64 That is not to say that this is the only way of filling the gaps of the
Convention: in some situations, the international community appears to resolve
difficulties on the basis of specific understandings between the respective sending
and receiving States. Yet it is only custom which can preserve a united position
under international law: allowing bilateral solutions to take its place is tantamount
to giving up the consensus which instruments like the VCDR sought to identify.
A second theme which recurs with some regularity in the current study, refers
to the need for a holistic legal assessment of the relevant situations under discus-
sion: an assessment which does not restrict itself to the rules of the VCDR (or
other relevant instruments of diplomatic law), but takes into account all norms of
international law which may exercise an impact in this field. Reference has in that
regard already been made to the meeting of the provision on non-​interference with
other rules of international law,65 but this situation is joined by numerous other
examples in areas as diverse as the employment of domestic staff by diplomatic
agents, personal diplomatic inviolability and its exceptions, and the inviolability of
diplomatic premises in emergency situations.66 The ‘other norms’ are often provi-
sions whose direction appears to diverge from those found in the system of dip-
lomatic law. But not always: at times, they reinforce a point which had already
received support through the text of the VCDR.
A third theme relates to the procedural level, rather than the field of substantive
law, and while it primarily refers to future developments, it is rooted in concerns
which derive from diplomatic law in its current state. It is a consideration which
concerns institutional progress: namely, the establishment of bodies tasked with
the interpretation of the rules in this field and the supervision of their application.
It is a point which has gained increasing traction in the literature,67 and which is

64  VCDR, preamble, 5th operative para. 65  See text to nn 61–​62 above.

66  For a more detailed discussion of some of these aspects, see Chapter 20, section 2.2.
67  See on this eg Joshua Groff, ‘A Proposal for Diplomatic Accountability Using the Jurisdiction
of the International Criminal Court: The Decline of an Absolute Sovereign Right’ (2000) 14 Temple
International and Comparative Law Review 209 at 227 et seq; Veronica Maginnis, ‘Limiting
Diplomatic Immunity: Lessons Learned from the 1946 Convention on the Privileges and Immunities
of the United Nations’ (2002–​2003) 28 Brooklyn Journal of International Law 989 at 990; Stephen
Wright, ‘Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent
Criminal Acts’ (1987) 5 Boston University International Law Journal 177 at 185–​88. Ben-​Asher advo-
cates the establishment of a ‘forum for arbitration’, which would deal with human rights violations
14

14 Diplomatic Law in a New Millennium

discussed in various chapters of this study as well.68 Solutions of this kind cannot be
expected to be without their difficulties: they require the construction of consensus
among a sufficient number of State parties to be feasible, and there are indications
that, at present, the appetite of the international community for new international
institutions, in particular international courts, is somewhat subdued.69
Yet inaction, too, comes at a price.
Diplomatic law, as it stands, is a system whose general principles are well
supported—​perhaps even grounded in universal approval. But agreement on prin-
ciples is not the leading challenge to the contemporary law on diplomatic rela-
tions. It is not the general consensus that is in question, it is the definition of the
rules in practice and their detailed application in everyday diplomatic life.
In the absence of an institutional solution, the system remains characterized
by its gaps and omissions, by vague language on the one hand and absolute terms
on the other. In the absence of a body that can, from a seat of authority, provide
clarification to States and diplomats alike, academic scholars and diplomatic com-
mentators find themselves in a position that, in spite of all the efforts at codifica-
tion, does not differ much from that of their forebears in the classical age of the
law of nations: like them, they are called upon to discern the contours of the law,
to establish its meaning, and to identify solutions for the many fields in which the
wisdom of the treaties has reached its limits.

by persons enjoying diplomatic privileges. Dror Ben-​ Asher, ‘Human Rights Meet Diplomatic
Immunities: Problems and Possible Solutions’ Harvard Law School (November 2000) <http://​www.
law.harvard.edu/​academics/​graduate/​publications/​papers/​benasher.pdf>.
A critical stance to international adjudication in this field is taken by Lori Shapiro, ‘Foreign
Relations Law: Modern Developments in Diplomatic Immunity’ (1989) Annual Survey of American
Law 281 at 297.
68  See, in particular, Chapters 11 and 20.
69  Recent developments in the field of international criminal law underline that point. In October
2016, three African States declared their withdrawal from the Rome Statute of the International
Criminal Court. Somini Sengupta, Marlise Simons, ‘African Exits Threaten a Court’ New York Times
(27 October 2016). The International Criminal Tribunal for Rwanda and the International Criminal
Tribunal for the former Yugoslavia had both come under criticism for the large budgets the courts
were running. See Jonathan Mann, Aneesh Raman, Robin Oakley, ‘Saddam Hussein Trial Update;
Other World Leaders’ Trials’ CNN International (13 February 2006); Paul Behrens, ‘Don’t Expect
Swift Justice for Flight 17’ The Scotsman (4 July 2015).
 15

2
A Former Diplomat’s Reflections on the
Vienna Convention
Brian Barder

I write as a former working diplomat who learned his curious trade on the job, not in
the lecture room. Consequently I lack an academic’s knowledge of the history of the
VCDR and I am not qualified to judge whether it has lived up to expectations. All I can
offer is some reflections on a few of the ways in which the VCDR affects diplomats as
they go about their business. I shall also argue that while many diplomats would benefit
from more familiarity with the history and underlying principles of the Convention,
some academic commentators on it might also benefit from greater knowledge of how
the Convention affects the life and work of diplomats in practical ways.
Reflecting on the VCDR, I draw on my experience as a British diplomat who
served in four of the five continents, in two capitals of countries then ruled by
more or less hostile communist governments—​Moscow and Warsaw—​and in two
capitals of developing countries with whom our relations at the time were dis-
tinctly edgy—​Addis Ababa and Lagos. It is in countries like these, where democ-
racy and the rule of law cannot always be relied on, that diplomats rely most on the
protections offered by the Convention. But it would be a mistake to suppose that
diplomats need no such protection or immunities in advanced, democratic coun-
tries and cities such as New York and Canberra, where I was also lucky enough
to serve.
In countries with totalitarian governments, and in developing countries where
democracy has not yet fully taken root, neither diplomats nor anyone else can gener-
ally rely on an independent judiciary to uphold their civil rights or to observe due pro-
cess and the rule of law. Without the protection of the Convention, diplomats could
and would come under pressure to behave in ways convenient to the local government
and security authorities but not necessarily compatible with their proper functions
or with their obligations towards the governments at home (which they are paid to
represent). A diplomat whose duty it is periodically to irritate and embarrass his hosts
by the regular delivery of protests and complaints, or by his revelations of injustices,
corruption, and other misdeeds in the country where he serves, could probably be
brought to heel, or at any rate restrained, if the host government were free to subject
him to exorbitant or indeed any other taxes, or to prosecutions and perhaps prison

A Former Diplomat’s Reflections on the Vienna Convention. Brian Barder. © Brian Barder, 2017.
Published 2017 by Oxford University Press.
16

16 A Former Diplomat’s Reflections on the Vienna Convention

sentences on trumped-​up charges. Without the Convention, other kinds of lesser
harassment and intimidation would be available as pressure on the uncooperative dip-
lomat: constant searches by the police of his car and home, the threat of prosecution
or civil court action against his wife or children, the levying of heavy import duties on
tools of his trade which are not available in the local shops and therefore have to be
imported—​and I am not thinking only of alcohol. (That too, though.)
As anyone who worked in Moscow or other Warsaw Pact countries in Cold War
days can testify, there are plenty of means of harassment that can be applied to for-
eigners, including diplomats regardless of their Vienna Convention immunities, as
a way of influencing their behaviour and making them more amenable. Abolishing
the protections given to diplomats by the Convention would greatly expand the
coercive armouries of hostile governments around the world and make the practice
of diplomacy even more difficult: even, eventually, impossible. (For the purposes of
these reflections I am assuming, not perhaps unduly controversially, a general con-
sensus that as between peaceful diplomacy constituting the principal means of com-
munication between national governments on the one hand, and the use or threat
of force in the conduct of countries’ international relations on the other, diplomacy
is generally to be preferred. Apart from anything else, diplomacy is less expensive.)
Even in the luxury capitals of the democratic West, some of the Convention’s
protections are absolutely indispensable. Chief among these is the ability of dip-
lomats to communicate securely with their home governments. Ordinary diplo-
matic activity would be impossible if host governments, however benign, were able
to open diplomatic bags and read their contents, listen to their telephone calls,
hack into diplomats’ e-​mails and telegrams, and inspect the highly classified cipher
machines which their diplomats import from home. The protection afforded by
the Convention to diplomatic communications is vital. As to whether governments
of sophisticated countries—​other than my own—​ever use their technological skills
to abuse the sanctity of the communications of foreign diplomats serving in their
countries, I couldn’t possibly comment. At least the Convention acts as a deterrent
to any such regrettable malpractices.
I should perhaps offer a few concrete examples of ways in which the Convention
actually impinges on the legitimate (or at any rate defensible) work of diplomats. I am
thinking of a walk-​in to the British Embassy in Moscow in 1972, the case of Mr Julian
Assange holed up in the Embassy of Ecuador in London, and the shooting of Woman
Police Constable Yvonne Fletcher from the Libyan Embassy in London in 1984.
In 1972, when I  was a humble—​or at any rate junior—​first secretary in the
British Embassy in Moscow, four teenage members of a pop music group, two boys
and two girls, from Armenia, then of course part of the Soviet Union, travelled
to Moscow and managed to burst into the British Embassy past the patrolling
Soviet militia outside the gates. They appealed to us for asylum and for visas to
enable them to emigrate to Britain, the land of the Beatles. They were carrying not
only their guitars but also razor blades, threatening to slit their own throats if we
expelled them from the Embassy and delivered them into the hands of the waiting
KGB, who rapidly augmented their patrols around the embassy building. It was
several days before they calmed down, and several weeks before we could convince
 17

A Former Diplomat’s Reflections on the Vienna Convention 17

them that there was no way for them to leave the embassy and go to England
without being intercepted and taken away by Soviet security. The Soviet Foreign
Ministry called in the British Ambassador and demanded that we hand over the
four ‘refugees’, claiming that we had no right under international law to help them
escape Soviet justice by abusing the immunity of the embassy’s premises. After
consulting the entire embassy staff, including spouses, and with the agreement of
our masters in London, the Ambassador refused to hand them over and promised
them (rather riskily) that we would not expel them against their own wishes.
After several weeks the parents of two of the teenagers arrived at the embassy in
official Soviet government cars. With the explicit agreement of all four teenagers we
allowed the parents to talk to them in complete privacy in a room in the embassy.
After much audible emotion, all four agreed to leave with the two pairs of parents
on the basis of a promise by the Soviet authorities that they would be allowed to go
home, and that they would not be prosecuted or otherwise penalized—​a promise
which we were later able to satisfy ourselves was fully honoured. A happy ending,
perhaps unusual for a diplomatic contretemps of this kind.
So although the Soviet authorities regarded our action in giving sanctuary to four
Soviet citizens as an abuse of our diplomatic immunities under the Convention,
they scrupulously observed it themselves and never attempted to force their way
into the embassy to seize the four Soviet citizens inside. I  express no view on
whether it is consistent with the terms and spirit of the Vienna Convention to
grant sanctuary in the inviolable precincts of an embassy to citizens of the host
country, who may or may not be fugitives from justice or just from a repressive
régime. Different countries adopt different positions on this issue, some having
undertaken treaty obligations relating to it. It may be an issue on which inter-
national uniformity would be unhelpful and traditional British pragmatism, deal-
ing with each such problem on its humanitarian and equitable merits case by case,
is best.
This leads me to the interesting case of Mr Assange, the Australian publisher of
WikiLeaks wanted in Sweden for questioning in connection with accusations of
certain sexual offences, including rape. Mr Assange has taken refuge—​some would
say ‘been granted asylum’—​in the embassy of Ecuador in London in order to avoid
extradition to Sweden, from which he claims to fear that he might be further extra-
dited to the United States.
There is no need for me to dwell on the basic facts of the case of Julian
Assange: they are well known. I shall focus on two aspects that have received
little attention and which bear directly on the Vienna Convention. First, as far
as I know there has never been a satisfactory explanation of the action of my
former UK government Department, the Foreign & Commonwealth Office
(FCO), in sending an official message1 to the government of Ecuador asserting

1  Aide Memoire by the British government to Ecuador (2012), Brian Barder, ‘Julian Assange,
Ecuador and the Law: A Compendium’, Ephems Blog (6 December 2012) <http://​www.barder.com/​
politics/​julian-​assange-​ecuador-​and-​the-​law-​a-​compendium/​> accessed 3 April 2017.
18

18 A Former Diplomat’s Reflections on the Vienna Convention

a legal right on the part of Her Majesty’s Government (HMG) to enter the
Ecuadorian Embassy, if necessary without the permission of the Ambassador,
and to remove Mr Assange, unless the Ambassador voluntarily handed him
over to the London police first. The message claimed that harbouring Assange
was an improper, even illegal, use of diplomatic premises and that the British
government had powers under UK law to declare that the embassy no longer
enjoyed diplomatic status and could therefore be entered by the British
authorities without the need for Ecuadorian permission. The implied claim
that UK domestic law overrode an international treaty obligation was extra-
ordinary: I wonder whether the terms of the FCO ultimatum were approved
by the FCO legal advisers. What would the consequences have been if the
FCO and the police had carried out their questionably legal threat? My sec-
ond comment on the Assange case concerns a scenario in which I suggest that
the Ecuadorians could get their inconvenient visitor out of their embassy and
onto a flight to Ecuador without breaching the Vienna Convention. I am no
more a lawyer than I am a historian of the Convention, but on a lay reading
of that wonderful document it seems that the Ecuadorians could notify the
FCO of the appointment of Assange as a member of their embassy’s diplo-
matic staff, drive him immediately to the airport and put him on a plane,
claiming his immunity from arrest as a diplomatic agent under Article 29 of
the Convention before the FCO has time to expel him—​and even if he were to
be expelled almost instantly, Assange would still enjoy immunity from arrest
for a reasonable time needed for him to leave the country. It’s true that the
FCO could forestall any such cunning plan under the Convention by declaring
Assange persona non grata before he could be appointed to the diplomatic staff,
or by notifying the Ecuadorians in advance that HMG would not accept any
non-​Ecuadorian citizen as a member of the embassy diplomatic staff (although
the Ecuadorians might get round that by granting him Ecuadorian citizen-
ship), or by formally ruling out in advance any diplomatic appointment to the
embassy of Ecuador in a defined category that would include Assange—​such
as Australians, or persons suspected of rape, or publishers of classified gov-
ernment documents, or whatever. To the best of my knowledge, the FCO has
never taken any of these pre-​emptive actions with the Ecuadorians, and if that
is correct, the Ecuadorians could still rescue their voluntary prisoner from his
confinement in their embassy and spirit him away to Quito, all within the
terms of the Vienna Convention. Of course whether the Ecuadorians actually
want to welcome Mr Assange to Quito on an extended visit, and whether Mr
Assange is attracted by the idea of being confined to Ecuador for the next sev-
eral years, far away from Harrods, are both open questions. But I suspect that
their Ambassador in London would be very happy to have the use once again
of the quarters now occupied by Mr Assange.
I recognize that there is more than one view among lawyers and diplomats on
whether the device I  have suggested would be viable. If it is, the only explan-
ation for the failure of the Ecuadorians to use it must be that neither they nor the
FCO have taken the trouble to read an extensive exchange of views about it freely
 19

A Former Diplomat’s Reflections on the Vienna Convention 19

available on the internet. On the face of it, this seems a good example of the flexi-
bility offered by the Convention to those who read its small print.
My third case study, the shocking murder in 1984 of WPC Yvonne Fletcher,
shot dead from a window in the Libyan Embassy in St James’s Square in London,
also raises some interesting, if more sombre, questions. The staff of the embassy
at the time were not professional diplomats: they were students, members of so-​
called Revolutionary Committees loyal to Colonel Gaddafi. The embassy was offi-
cially called the Libyan People’s Bureau, tacitly (but only tacitly) accepted by the
Libyan government as the office of the representatives of Libya in London. So did
they enjoy full diplomatic immunity from arrest and trial? Had they all been for-
mally notified to the FCO as diplomatic staff ? Presumably they did, and had, for
after the shooting HMG demanded that the Libyans should waive the diplomatic
immunity, if any, of whoever had shot WPC Fletcher and should hand him or her
over to face justice. Predictably, the Libyans refused.
The police thereupon surrounded the Libyan Embassy building in a siege
that lasted eleven days. The deadlock was resolved only when the British govern-
ment allowed the entire staff of the embassy to leave the building and immedi-
ately expelled them all, so that they were all, presumably including the murderer,
allowed to return to Libya, since the Convention guarantees the continuation of
immunities for diplomats expelled by the host government for long enough to
enable them to leave the country.
It is perhaps interesting to speculate about whether the British government had
the option of declaring, immediately after the shooting, that the embassy was being
used for activities incompatible with its diplomatic status—​ie murder—​and was
therefore no longer immune from forcible entry by the British police without the
Ambassador’s permission. Instead Britain waited for eleven days before reaching a
compromise agreement that allowed the guilty party or parties to return home to
Libya unscathed. Probably the reason for this apparent restraint and patience on
the part of the British government was the fear of almost certain violent retaliation
against the staff of the British embassy in Tripoli, who were eventually also allowed
to leave the country when Britain understandably broke off diplomatic relations
with Libya altogether over the Fletcher shooting.
This raises an interesting point about reciprocity, one of the key concepts in
diplomatic affairs. Most countries, most of the time, choose to respect the provi-
sions of the Vienna Convention, and the privileges and immunities that it con-
fers on diplomats accredited in their capitals, for fear that failure to do so will
expose their own diplomats serving abroad to the risk of retaliation in the name of
reciprocity—​quite a powerful sanction, fortunately for diplomats. In a sense, the
whole Convention is based on general acceptance of the principle of reciprocity: ‘I
won’t lay a finger on your Ambassador so long as you don’t lay a finger on ours.’
There are other provisions of the Convention besides those that confer widely
misunderstood and much envied privileges and immunities on diplomats. Among
the other provisions most actively relevant to diplomats’ everyday life and work is
the requirement under Article 41 of the Convention that all persons enjoying dip-
lomatic privileges and immunities have a duty ‘to respect the laws and regulations
20

20 A Former Diplomat’s Reflections on the Vienna Convention

of the receiving State’, and ‘not to interfere in the internal affairs of that State’.
This raises many difficulties of interpretation in situations where the relationship
between the diplomat’s government and the host government is hostile or adver-
sarial. In the days of the Cold War, how far was it legitimate under the Convention
for Western diplomats serving in, say, Poland to maintain relations with the (then
technically illegal) Solidarity movement of Lech Wałęsa, knowing that the mere
act of keeping in touch with Solidarity leaders provided them with a measure of
respectability, legitimacy, and even some limited protection against harassment by
their own government?
When I was British Ambassador in Warsaw, we enjoyed the friendship of the
then official spokesman of Solidarity and his wife, whom we saw on many social
occasions in our official residence and elsewhere. When Janusz Onyszkiewicz was
sent to prison once again for a few weeks on the usual trumped-​up charges, part of
the routine harassment of Solidarity leaders, my wife used to go round to his small
nearby flat to collect the dirty washing generated by their numerous small children
and take it back to go into the washing machine at our residence, returning it clean
and neatly ironed to his feisty wife. Did that constitute interference in the internal
affairs of Poland? The Polish government at the time would certainly have said that
it did, although they never protested, no doubt having other and weightier matters
on their minds than who was washing the Solidarity nappies.
More seriously, I used to pay periodic visits to the Solidarity leader, Lech Wałęsa,
in Gdansk, not only to discuss Polish affairs with him (always a fascinating experi-
ence), but also indirectly to demonstrate my government’s implicit solidarity with
Solidarity (to coin a phrase). After every such visit I would be routinely summoned
to the Foreign Ministry in Warsaw to be reprimanded for trying to give undeserved
importance to a former Polish political figure who was now of no political sig-
nificance, with the clear implication that this constituted interference in Poland’s
internal affairs. Like other Western Ambassadors who kept in touch with Wałęsa—​
and indeed many other Solidarity leaders—​I invariably replied that it was legitim-
ate for diplomats serving in Poland to keep in touch with opposition figures on
the political scene, just as Polish diplomats in London would be expected to main-
tain contact with members of Her Majesty’s Official Loyal Opposition (admittedly
a somewhat inexact parallel). As for the alleged political insignificance of Lech
Wałęsa, barely two years after I left Poland for another posting, Lech Wałęsa was
elected President of Poland, although when I saw him to say goodbye in 1988,
neither he nor I had any inkling that such a thing was possible, still less imminent.
Sometimes diplomats in hostile or totalitarian countries—​not always the same
thing—​do get involved in encouraging or even supporting opposition movements,
sometimes actually illegal ones, like Solidarity. They often do this under the banner
of promoting human rights throughout the world. It may be argued that promot-
ing human rights in other people’s countries is encouraged and legitimated by
various international treaties and covenants that enjoy equal international legal
status with the Vienna Convention. Who is to say which is to prevail in the event
of conflict? In practice, however, the question is largely academic, if I might use
such a negative term in this predominantly academic context. Whatever Article 41
 21

A Former Diplomat’s Reflections on the Vienna Convention 21

might say, diplomats will go as far in interfering in their host country’s

internal affairs, when it suits them to do so, as they think they can get away with.
In Cold War Poland, there was a clear limit on the Polish communist government’s
scope for taking action against Western diplomats who gave tacit support and
even some protection to the anti-​Communist Solidarity movement and its leaders.
Any attempt to stop this would have provoked an international outcry that would
have additionally benefited Solidarity. Moreover, there is safety in numbers: they
would have had to think twice before expelling half or more of the Ambassadors of
Western countries who were behaving in much the same way, and always with the
evident approval of their own governments.
Here I must stress the important distinction between on the one hand diplo-
matic activity which, though arguably legal, could be construed as interference
in a country’s internal affairs, and on the other hand straightforward espionage.
Most espionage, as practised of course by other less enlightened countries than
mine, involves breaking the law of the host country in order to obtain informa-
tion by clandestine means, and under Article 41 of the Convention all diplomats
with immunity have a duty ‘to respect the laws and regulations of the receiving
State’, even though they enjoy immunity from arrest and trial if they fail in that
duty. When I drove from Warsaw in my official car, flying the Union flag with the
royal coat of arms at the centre, to visit Lech Wałęsa in Gdansk, routinely followed
every kilometre of the way by a team from Polish security in their own official car,
I was not knowingly breaking any Polish law, nor indeed acting in any way clan-
destinely. Whether I was acting within the letter or the spirit of Article 41(1) of the
Convention is a question for others to ponder.
I have enjoyed many discussions over the years with academic experts on the
history and theory of diplomacy, aspects of my old trade of which, as I  say,
I  am largely ignorant. In those discussions I  have sometimes been struck by
the apparent lack of understanding on the part of some eminent academics of
what working diplomats actually do, from the time when they get up in the
morning until they go to bed in the early hours of the following morning, some-
what the worse for duty-​free drink consumed at some unconscionably tedious
embassy reception. Conscientiously researched articles in learned journals and
even more punctilious books are written about the doctrines underlying the
Vienna Convention and their effect on the evolution of both diplomacy and
diplomatic theory. Yet few of them seem to recognize the practical ways in which
international law, including in particular the Convention, affects the day-​to-​day
work of real-​life diplomats. I  was eventually persuaded to attempt to fill this
apparent gap in the literature by writing a book describing ‘what diplomats do’
in real life as distinct from theory. The resulting book, What Diplomats Do: The
Life and Work of Diplomats, was published by Rowman & Littlefield in July
of 2014. In describing a fictitious diplomat’s day-​to-​day work in many differ-
ent circumstances I have ruthlessly excluded theory in favour of actual practice,
illustrating each chapter with anecdotes drawn from my own experience in the
field. There is hardly a page in the book that has no bearing, however indirect, on
the many practical, as distinct from theoretical, questions raised by the Vienna
2

22 A Former Diplomat’s Reflections on the Vienna Convention

Convention. That document is a central part of international law with real-​life
practical consequences for working diplomats.
I started with a warning that I am not qualified to write about the history of
the Vienna Convention or about how far it has lived up to expectations. Instead,
I have tried to quote some examples of the ways in which the provisions of the
Convention affect the daily lives and work of diplomats around the world—​from
dignified Ambassadors and High Commissioners to scruffy Second Secretaries
learning their funny old trade on the hoof. I  readily acknowledge that working
diplomats like them, and like me, would probably do better if they knew more
about the background, development, and underlying doctrines of the Vienna
Convention. By the same token, academic historians and legal analysts of the
Convention might perhaps benefit from a better understanding of the practical
ways in which it impinges, or fails to impinge, on the everyday lives and work of
practising diplomats.
 23

3
In Praise of a Self-​Contained Regime
Why the Vienna Convention on Diplomatic Relations
Remains Important Today

J Craig Barker

1. Introduction

The VCDR stands as one of the most successful ever international treaties. There
are currently 190 States Parties to the Convention, meaning that only five or so
States worldwide are not States party. According to the ICJ, the Convention is
‘accepted through the world by nations of all creeds, cultures and political com-
plexions’.1 The success of the Convention can be put down, in large part, to the
fact that a significant proportion of it constitutes a codification of well-​established
practice dating back in many cases some hundreds of years.
Nevertheless, the last fifty years have seen seismic change in the context in
which contemporary diplomacy now operates. The Cold War that served as the
geopolitical backdrop for the negotiation of the Vienna Convention ended some
twenty-​five years ago. The emergence of the globalized economy and the rapid
development of technology have undermined the traditional role of diplomats.
New diplomatic processes have emerged though the creation of governmental and
non-​governmental institutions. Notions such as collaborative, public, and cultural
diplomacy are challenging accepted understandings of the role and function of
traditional diplomacy. Additionally, international law is itself changing from a sys-
tem intended to regulate co-​existing and, at times, cooperating sovereignties, into
a diverse and possibly fragmented discourse of complex and, at times, competing
normative frameworks which themselves challenge the sovereignty paradigm. Such
competition is perhaps most apparent in the alleged conflict between international
immunities (including diplomatic immunity) and human rights.
This chapter will examine the success of the Vienna Convention as an inter-
national instrument. It will focus on the reciprocal nature of the Convention and

1  Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v
Iran) 1980 ICJ Rep 3, 25 (hereinafter Tehran Hostages Case).

In Praise of a Self-Contained Regime: Why the Vienna Convention on Diplomatic Relations Remains
Important Today. J Craig Barker. © J Craig Barker, 2017. Published 2017 by Oxford University Press.
24

24 In Praise of a Self-Contained Regime
will highlight some of the elements of diplomatic law that are essential to its con-
tinued success even in a time of change and challenge. Remembering the origins of
diplomatic law among ancient tribes and civilizations up to the modern day, it will
be argued that the fundamental principles of diplomacy and the law that governs
these principles should be maintained as they are and not opened up to possible
deconstruction.

2.  Analysing the Success of the Vienna Convention: In Praise of a

Self-​Contained  Regime

In this section, it will be argued that one of the primary reasons for the success of the
Vienna Convention lies in its self-​contained nature. According to the ICJ:
The rules of diplomatic law . . . constitute a self-​contained regime which, on the one hand,
lays down the receiving State’s obligations regarding the facilities, privileges and immunities
to be accorded to diplomatic missions and, on the other hand, foresees their possible abuse by
members of the mission and specifies the means at the disposal of the receiving State to counter
any such abuse.2
The privileges and immunities of diplomatic missions, and of specified diplomatic
personnel,3 are significant and include the inviolability of person4 and property;5 free-
dom of movement in the receiving State subject to limited exceptions;6 as well as
immunity from civil and criminal jurisdiction;7 and certain privileges and exemp-
tions in relation to duties otherwise owed to the receiving State.8 The provisions that
provide the counterbalance to the privileges and immunities, and thereby facilitate
the self-​contained nature of the Convention, are framed by Article 41 of the Vienna
Convention which places a duty on all persons enjoying privileges and immunities
to respect the laws and regulations of the receiving State. This duty is underpinned
by what this author has previously referred to as ‘administrative measures’ contained
in Articles 4–​11 of the Convention, and ‘punitive/​deterrent measures’ compris-
ing Articles 9, 31(4), 32, and 39(2).9 It is these counterbalancing provisions of the
Convention that will form the basis of the discussion in the remainder of this section.
Article 41 of the Vienna Convention may be seen as a rather pointless provi-
sion insofar as the obligation placed on persons enjoying privileges and immu-
nities to respect the laws and regulations of the receiving State, and indeed
not to interfere with the internal affairs of the receiving State, is offset by the
phrase ‘without prejudice to their privileges and immunities’. It is quite clear
from the travaux préparatoires of the Vienna Convention,10 and from State

2 ibid 40. 3  See VCDR art 37. 4  VCDR art 29.

5  VCDR arts 22, 24, 27, 30. 6  VCDR art 26. 7  VCDR art 31.
8  VCDR arts 20, 23, 28, 33–​36.
9  See further J Craig Barker, The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil?
(Ashgate, Aldershot 1996) Chapter 5.
10  See eg ILC Yearbook 1958 vol I, 148.
 25

Analysing the Success of the Vienna Convention 25

practice,11 that the principle of diplomatic inviolability was intended to have

overriding force. To some extent therefore, it may be argued that the obli-
gation to comply with local law and regulations is little more than a moral
interdiction.12 However that assertion would misunderstand the interweav-
ing of rights with administrative and punitive/​deterrent measures throughout
the Convention. As the ICJ has made clear, ‘diplomatic law itself provides the
necessary means of defence against, and sanctions for, illicit activities by mem-
bers of diplomatic or consular missions’.13

2.1 Administrative measures
The administrative measures available to States in Articles 4–​11 of the Convention
are not specific to the control of abuse of diplomatic privileges and immunities.
They constitute a range of mechanisms available to every receiving State to limit
the size of missions and control the number and, to some extent, the identity of
personnel entitled to diplomatic privileges and immunities in their territory. If
used properly, these provisions can be very effective.14
Article 4 requires the sending State to secure the agrément of the receiving State
for the appointment of a Head of Mission.15 This allows the receiving State to
block the appointment of a particular Head of Mission without having to give
reasons for that decision.16 According to Article 7 of the Convention, other mem-
bers of diplomatic missions, including diplomatic agents, can be freely appointed
by the sending State. Only in the case of military, naval, and air attachés can the
receiving State request that names be provided in advance.17
Nevertheless, Article 7 should be read in conjunction with Article 9.  Article
9 provides that the receiving State may declare a diplomat persona non grata and
is one of the principal provisions of the Convention dealing with limiting the
problem of abuse. The relevance of Article 9 as a sanctioning mechanism will be

11  According to the United Kingdom’s House of Commons Foreign Affairs Committee, which
undertook a significant investigation of the rules of the Vienna Convention in the aftermath of the
shooting of WPC Yvonne Fletcher from the Libyan Embassy in April 1984, ‘it is not correct that when
a diplomat violates this duty he loses his immunity. Such a reading is inconsistent with the immunities
given, which operate precisely in respect of such alleged violations . . . An argument can be made that
when diplomats act in fact as terrorists, they are not diplomats at all, and thus must lose the benefits
of those immunities that diplomats are entitled to. But the right view seems to be that a diplomat
remains an accredited diplomat until the receiving State requires him to be withdrawn. This view
would seem to accord with the general ethos of the Convention that there should be no exception to
its terms’. Foreign Affairs Committee (UK), ‘The Abuse of Diplomatic Immunities and Privileges’ HC
Paper 127 (1984–​85) para 42 (hereinafter Foreign Affairs Committee).
12 The moral and/​or professional interdiction on diplomats not to abuse their privileges and
immunities is strong insofar as diplomatic personnel who otherwise retain their privileges and
immunities commit serious offences far less frequently than their civilian counterparts. See House
of Commons:  Written Statement (HCWS128) Foreign and Commonwealth Office made by The
Secretary for State for Foreign and Commonwealth Affairs (Mr Philip Hammond, 16 July 2015)
<http://​www.parliament.uk/​documents/​commons-​vote-​office/​July%202015/​16%20July/​9-​FCO-​
AllegedSerious.pdf> accessed 27 May 2016.
13  Tehran Hostages Case (n 1) 38. 14  Foreign Affairs Committee (n 11).
15  VCDR art 4(1). 16  VCDR art 4(2). 17 VCDR art 7.
26

26 In Praise of a Self-Contained Regime
considered in due course. However, insofar as the receiving State is entitled to
invoke Article 9 ‘at any time and without having to explain its decision’, it is clear
that the mechanism can be used to limit the granting of diplomatic privileges and
immunities to individuals deemed unacceptable to the receiving State. The add-
ition of a final sentence to Article 9(1) at the Vienna Conference to the effect that
‘A person may be declared persona non grata or not acceptable before arriving in the
territory of the receiving State’ emphasizes the availability of this administrative
power as a mechanism to limit the granting of diplomatic privileges and immuni-
ties to specific individuals. It might be argued that this undermines the explicit
power of the sending State in Article 7 freely to appoint members of their mission,
but in this case, the balance has been struck in favour of the receiving State. That
having been said, if a receiving State chooses not to undertake the necessary due
diligence inquiries to identify and vet those individuals who are being accredited to
it, their right to call foul when privileges and immunities are abused is significantly
undermined. The limitation in Article 7 that allows sending States not to provide
names can be overcome either by prior agreement between the two States or during
the accreditation process itself. Bearing in mind the significant advances in tech-
nology that have occurred since 1961, it would not seem to be a difficult task to
identify and check on the specific identity of any person who is working in or asso-
ciated with a diplomatic mission in any country and exclude any ‘undesirables’.
Further restrictions on the right freely to appoint diplomatic personnel are to
be found in Articles 10 and 11 of the Convention. Article 10 of the Convention
requires that the Ministry of Foreign Affairs of the receiving State be notified of
the arrival and final departure of members of a diplomatic mission as well as family
members of such individuals, the arrival and departure of private servants of mem-
bers of the mission as well as dates of ending of employment as such, and finally
of appointment of permanent residents of the receiving State as persons entitled to
diplomatic privileges and immunities, although in relation to this final category, it
can be noted that the privileges and immunities of private residents of the receiving
State are significantly limited by other provisions of the Convention.18 Article 11
provides that ‘[i]‌n the absence of specific agreement as to the size of the mission,
the receiving State may require that the size of a mission be kept within limits
considered by it to be reasonable and normal, having regard to circumstances and
conditions in the receiving State and to the needs of the particular mission’.19 It is
clear that without agreement, the question of the size of mission is left entirely at
the discretion of the receiving State.
None of these administrative measures provide direct sanctions for abuse of dip-
lomatic privileges and immunities (except where Article 9 is specifically so used,
as explained below). Nevertheless, a close examination of the travaux préparatoires
of the Draft Convention and of the Conference proceedings reveals that where
existing customary law was unclear as to the precise balance of power between the
sending and receiving States, the ultimate right to determine who is and is not

18  See, in particular, VCDR art 38. 19  VCDR art 11.

 27

Analysing the Success of the Vienna Convention 27

entitled to accreditation and, as a consequence, entitled to diplomatic privileges

and immunities, was left with the receiving State.20 Once again it is worth high-
lighting that where a State chooses not to apply Articles 4–​11 as strictly as they are
otherwise entitled, as happened in the Yvonne Fletcher case, then the right of the
receiving State to complain about abuse is limited.
In order fully to understand the importance of the administrative measures pro-
vided for in the Vienna Convention, it is worth dwelling on the Fletcher case and
its aftermath. Without going into significant detail it will be recalled that WPC
Fletcher was killed by a bullet that was fired from inside the premises of the Libyan
People’s Bureau located in St James’s Square, London.21 WPC Fletcher had been
policing a peaceful demonstration directed against the Gaddafi regime in Libya.
After the incident, the ‘embassy’ was held in lock down for eleven days while
the Government considered what their response should be. Ultimately, all occu-
pants of the building were permitted to leave London and return to Tripoli. The
matter was referred to the Parliamentary Foreign Affairs Committee, whose 1984
Report22 was responded to by the Government in 1985.23

2.2 Punitive/​deterrent measures
The ‘sanctions for illicit activities’ referred to by the ICJ in the Hostages Case may
not at first appear to be sanctions and, in fact, have led one leading barrister to
suggest that the Convention is little more than a ‘charter for impunity’ that should,
be abandoned immediately.24 However, this is little more than a rather trite sound
bite that indicates a disregard for the moral integrity of the vast majority of diplo-
matic personnel and, more importantly, of the deterrent values of these provisions.
The measures that a State can take after an allegation of abuse of immunities
by a diplomat are contained in Articles 9, 31(4), 32, and 39(2) of the Vienna
Convention. The power to declare an individual persona non grata, by virtue of
Article 9 of the Convention, and to require his or her removal from the receiving
State, is the most immediately available response for a State facing abuse. The rem-
edy is apparently unlimited and States are not required to give reasons for declar-
ing an individual persona non grata, though they often do. On the other hand,
State practice suggests that States are unwilling to use this remedy except in the
case of the most serious abuse.25 It is difficult fully to explain such an approach.

20  For a full analysis of the travaux préparatoires and the Conference proceedings in relation to
VCDR arts 4–​11, see Barker (n 9) 91–​102.
21  For full details of the circumstances and aftermath of the case see Foreign Affairs Committee
(n 11), and Barker (n 9) Chapter 1.
22  See Foreign Affairs Committee (n 11).
23 Secretary of State for Foreign and Commonwealth Affairs (UK), ‘Government Report on
Review of the Vienna Convention on Diplomatic Relations and Reply to “The Abuse of Diplomatic
Immunities and Privileges” ’ (Cmnd 9497, 1985), 6, para 8 (hereinafter ‘Cmnd 9497’).
24  See Geoffrey Robertson QC on Exposed:  Inside the Diplomatic Bag (ITV, first broadcast, 26
March 2014).
25  For an alternative view of persona non grata see Paul Behrens, Diplomatic Interference and the Law
(Hart Publishing, Oxford 2016) 2, with extensive references at 277–​386.
28

28 In Praise of a Self-Contained Regime
It can partly be explained by the fear of reciprocal action.26 Additionally, the fear
of offending the sending State may limit use of the process.27 Nevertheless and
whatever the reason might be for the limited use of persona non grata, as far as the
person endowed with privileges and immunities is concerned, it is likely that the
fear of being declared persona non grata is a significant deterrent against abuse. It
would be a mistake by such an individual to assume that any State will follow ‘nor-
mal’ practice in every case.
Article 31(4) of the Convention 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’. The question of jurisdiction, particularly crim-
inal jurisdiction is a complex one. The mere fact that jurisdiction is available to the
sending State does not necessarily mean that the sending State, or indeed anyone
else for that matter, will be able to exercise that jurisdiction. Attempts at the ILC28
and again at the Vienna Conference29 to require States to designate a competent
court to hear cases relating, in particular, to debts incurred by diplomats, were
rejected. Ultimately, the barriers to pursuing a successful civil claim or criminal
prosecution in the sending State are remote. As this author has previously noted,
problems such as securing the attendance of witnesses, production of evidence,
and the problems of a fair trial, as well as the costs involved in bringing a claim or
mounting a prosecution in the sending State, even if that were possible, mitigate
strongly against the success of Article 31(4) as a deterrent.30 Nevertheless, the mere
fact that the provision exists alongside the statement of immunity contained earlier
in Article 31(1) should at the very least give diplomatic personnel some pause for
thought in terms of avoiding abuse of their privileged status.
Article 39(2) of the Vienna Convention is similarly limited as a sanction not
by its terms but by the opportunities that exist for it to be fully applied. Article
39(2) provides that the immunity of a diplomatic agent ceases when he or she
leaves the receiving State, except in relation to acts performed in the exercise of
official functions for which immunity remains. Article 39(2) was used ‘by ana-
logy’ in the determination of the immunity to be ascribed to General Augusto
Pinochet, the former Chilean Head of State, in relation to his requested extradi-
tion from the UK to Spain in 1998. One of the key questions in that case con-
cerned whether the crimes of which Pinochet was accused could be considered

26  Tit-​for-​tat expulsions of diplomatic agents was common during the Cold War but persists today.
Recent examples include the expulsion of several Russian and Polish diplomats in November 2014: see
‘Russian and Poland Expel Diplomats in Tit-​for-​Tat Measures’ The Guardian (17 November 2014)
<https://​www.theguardian.com/​world/​2014/​nov/​17/​russia-​poland-​expel-​diplomats>. On the day
that this chapter was being finalized by the author it was reported that the US had expelled three
Venezuelan diplomats in response to the expulsion of three US diplomats:  see ‘U.S.  expels three
diplomats in tit-​for-​tat measure with Venezuela’, North America Inter-​Press Service (2 October 2013)
<http://​www.ipsnews.net/​2013/​10/​u-​s-​expels-​three-​diplomats-​in-​tit-​for-​tat-​measure-​with-​venezuela/>
accessed 27 May 2016.
27  This is mitigated somewhat by the use of less offensive language such as ‘request the recall’. See
Ivor Roberts, Satow’s Diplomatic Practice (6th edn, OUP, Oxford 2009) 206.
28  ILC Yearbook 1959 vol II, 99.    29  UN Doc A/​CONF 20/​C 1/​L 186/​Rev 1.
30  Barker (n 9) 105–​11.
 29

Analysing the Success of the Vienna Convention 29

acts performed by Pinochet in the exercise of his functions as Head of State.

Similar issues might arise if a diplomat were accused of comparable crimes in a
receiving State. However, the application of Article 39(2) is severely limited by
the fact that the individual is required to be given a ‘reasonable period in which
to leave the receiving State’. It is unlikely that the sending State will choose to
extradite an accused back to the receiving State, particularly where it will have
previously taken the decision not to waive the immunity of that same individual.
What is required is that the individual accused voluntarily decides to return to
the receiving State, something that would seem to be unusual. Nevertheless, it is
worth noting the recent application of Article 39(2) on 19 November 2015 in
relation to the arrest of an individual accused of the shooting of WPC Fletcher.31
It appears that in this case, the individual may have voluntarily returned to the
UK, although whether he expected to be arrested in relation to that crime is
unclear.
Arguably the single most important deterrent of abuse is to be found in Article 32
of the Convention which deals with the issue of waiver of immunity. Theoretically
this provision should provide the solution to the problem of the abuse of diplo-
matic privileges and immunities by providing the ultimate deterrent. However, it
would appear that States are generally unwilling to waive immunity, particularly
in relation to serious offences. The wording of Article 32 makes it clear that there
is no obligation on States to waive diplomatic immunity in any circumstances. It
enunciates a right which a State is entitled to exercise according to its own deter-
mination. Thus, even the earliest drafts of the article in question refer to the fact
that a State ‘may’ waive immunity.32 It is worth noting that an attempt was made
at the Vienna Conference to hold States responsible for damage caused by diplo-
matic personnel by including a requirement that States make fair compensation for
such damage. The proposal, which was put forward by the Holy See, was intended
to ensure the accountability of States for the action of their representatives in cases
where the immunity of those representatives was not waived.33 However, the pro-
posal was soundly rejected by the vast majority of States, who made clear their
opposition to there being any sense of obligation to waive immunity or to pay
damages in lieu.34

31  See Ewan Palmer, ‘PC Yvonne Fletcher:  Was Britain Right to “allow murderer to walk free”
under Diplomatic Immunity?’ International Business Times (20 November 2015) <http://​www.
ibtimes.co.uk/​pc-​yvonne-​fletcher-​was-​britain-​right-​allow-​murderer-​walk-​free-​under-​diplomatic-​
immunity-​1529723> accessed 27 May 2016.
32 Report of the International Law Commission on its Draft Articles concerning Diplomatic
Intercourse and Immunities A/​2623, ILC Yearbook 1957 vol II, 139.
33  The proposal was to include a further paragraph in art 32(1) of the Convention to read as fol-
lows: ‘[The sending State] shall, in any case be under an obligation to take appropriate steps to provide
fair compensation for damages caused by its diplomatic agents in consequence of liabilities incurred
by them in criminal or civil matters in the receiving State.’ UN Doc A/​CONF 20/​C 1/​L 292. The
proposal was not adopted.
34  See eg the view of the US delegate who noted that the proposal imposed an obligation on the
sending State without establishing its liability or its responsibility for the compensating of individuals
suffering damage. ibid.
30

30 In Praise of a Self-Contained Regime
It would seem that the general attitude of States against there being an obliga-
tion to waive immunity is reflected in the current practice of States generally to
refuse to waive diplomatic immunity. The UK Government noted in 1985 that:
[t]‌he main abuse lies not so much in the comparative number of alleged offences (which
is small) or in their relative gravity, but in the reliance on immunity to protect individuals
for offences without any obvious connection to the efficient performance of the functions
of a diplomatic mission.35
As the decision whether or not to waive diplomatic immunity lies with the send-
ing State and not the individual, it would appear that the UK Government was of
the view that the primary abuse of diplomatic privileges and immunities lay in the
refusal of States to waive diplomatic immunity in appropriate cases. On the other
hand, the UK Government was unwilling to pursue any mechanism by which the
waiving of diplomatic immunity could be more easily achieved. It concluded that,
even if it was objectively justifiable to impose an obligation to waive immunity, in
appropriate circumstances, there was no support for such a move, not even on a
limited basis amongst close allies:
We have found . . . no support within the European Community or elsewhere for the idea
of bilateral or limited mutual agreements to waive immunity either generally or in specific
cases. There would, in any case, be a risk that a restriction on immunity could in certain
countries be exploited for political or retaliatory purposes against British diplomats and
communities overseas.36
Whether such a position would be maintained in the European Union (EU) today
is moot, particularly in the context of the development of the notion of EU citi-
zenship and the more recent consolidation of the Common Foreign and Security
Pillar of the EU into the EU Treaty, as well as the development of the European
External Action Service (EEAS), which, since 2010, effectively functions as the
diplomatic service of the EU.37 On the other hand, neither the various agreements
giving rise to the EEAS, nor any other published agreements of member States of
the EU since 2010 make explicit reference to the question of there being a mutual
duty to waive immunity and it would seem that in spite of ever closer union of
States in the EU and the nature of European citizenship, the waiver of immunity
will continue to be the exception rather than the rule.
Ultimately, the decision as to whether or not to waive immunity is not a legal
one. Rather, it is a political decision based upon a number of factors which take
account of the possibility of retaliatory measures being taken against diplomatic
personnel, most obviously in the form of trumped up or fabricated charges, but
which also take account of the wider general interests of the State in question. The
political nature of the decision as to whether or not to waive diplomatic immunity

35  Cmnd 9497 (n 23) para 62. 36 ibid.

37  Article 13a-​III of the Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community [2007] OJ C306/​01 (Article 27 TEU). See further the official
website of the EEAS <http://​www.eeas.europa.eu/​index_​en.htm> accessed 27 May 2016.
 31

Analysing the Success of the Vienna Convention 31

in any particular instance is most apparent in the US Department of State’s 1986

Guidance to the Foreign Service. The Guidance noted that:
[T]‌he individual, who ultimately benefits from the immunity, has no power to waive
immunity even in cases where he or she believes that it would be in his or her personal
or commercial interest to do so. Rather, the sending State must waive immunity when it
judges that to do so is in the national interest.38
In the same note, the Department of State made clear it policy against the waiving
of immunity:
While the power to waive immunity is always available, it is the usual practice of the
Department of State to waive only in benign circumstances.39
It would seem, accordingly, that matters of justice in the receiving State are very
much of secondary consideration to the national interests of the US in making
such a determination.
This attitude apparently prevails throughout the world driven by a sense that
waiver is the exception and, to some extent believing, rightly or wrongly, that
waiver of immunity in one case would open the door to future requests for wai-
ver that would be increasingly difficult to resist. This was apparently the view of
the Government of St Lucia when it refused to waive the immunity of Dr Walid
Juffali, its permanent representative to the International Maritime Organisation in
London, who was facing a civil claim in the British courts in relation to a divorce
settlement. It is difficult to question the assertion by the Government in this case
that ‘based on the legal advice it received and diplomatic practice in such matters,
the case does not warrant the lifting of . . . immunity’.40

2.3 The Vienna Convention as a self-​contained regime—​some

concluding thoughts
This overview of sanctions available to prevent and punish breaches of diplomatic
privileges and immunities illustrates that there are significant measures available
to receiving States to deal with the problem of abuse of diplomatic privileges and
immunities, but highlights that preventive measures may be limited either by prac-
tical and legal difficulties or through political choice. The deterrent effect of these
measures cannot but influence the conduct of diplomatic personnel, particularly
those serving States who are willing to punish breaches of diplomatic personnel
abroad when those individuals return to their home State, either through criminal
or civil process, or, more likely, through employment measures such as demotion

38  ‘Privileges and Immunities’ What Do I Do Now? Overseas Briefing Centre Supplement, February
1986, quoted in Grant V McClanahan, Diplomatic Immunity: Principles, Practices, Problems (C Hurst
& Co, New York 1989) 138.
39 ibid.
40  Government of St Lucia Press Release 008/​16, 18 January 2016. Full text reproduced in St Lucia
Times (18 January 2016) <http://​stluciatimes.com/​2016/​01/​18/​government-​will-​not-​waive-​juffalis-​
immunity> accessed 27 May 2016.
32

32 In Praise of a Self-Contained Regime
or restrictions on promotion. The significant problems arise where diplomats
are accused of offences that are not taken seriously, or are even condoned by the
sending State.
The commission of parking offences is one such example. The UK Government’s
review of diplomatic privileges and immunities undertaken in the aftermath of the
Fletcher incident recognized not only the problem of serious abuse of diplomatic
privileges and immunities but also of the ‘proliferation of driving and parking
offences for which immunity is claimed’ giving rise to significant public concern in
capital cities around the world.41 The UK Government made clear its desire to deal
with this problem and indicated that it had both the right and the inclination to
deal with repeat offenders, primarily through engagement with the relevant Head
of Mission and ultimately through the persona non grata process.42 Nevertheless,
since 1995, as is apparent from the annual survey of serious offences committed by
persons entitled to diplomatic privileges and immunities in the United Kingdom,
it is clear that the number of parking offences committed by individuals entitled
to diplomatic immunity has not reduced substantially and there is little apparent
effort to deal with repeat offenders despite the clear information as to which States
those offenders represent.43
Ultimately, it is asserted that the Vienna Convention provides sufficient tools
to ensure the balancing of the interests of both sending and receiving States. It is
strengthened by the bilateralism that is at the core of every diplomatic relationship
insofar as every sending State is also a receiving State and, in most cases, engage
in the exchange of diplomatic personnel. To that extent, the self-​contained nature
of the Convention allows States to avoid disputes by training and advising their
representatives fully and, where disputes occasionally occur, to sort them out by
recognizing the mutually beneficial impact of observing the Convention in its full-
est respects.

3.  The Future of the Vienna Convention in a Changing World

It cannot be denied that the nature of intercourse between States is changing.

Some would argue that the nation State is a dying concept, others that it is already
dead. Reference has already been made to the development of the EEAS which
might, one day, replace the individual diplomatic services of the member States of
the EU. As far-​fetched as this process seems, it will not lead to a radical transform-
ation of the diplomatic process as we know it today insofar as representatives of
the EU (EU diplomats) will continue to engage with non-​EU powers in much the
same way as State representatives do today.
The concept of public diplomacy suggests a significant role for individuals and
groups in influencing the conduct of foreign relations. It would seem, however, that

41  Cmnd 9497 (n 23), para 8. 42 ibid 27.

43  See the Statement of Mr Philip Hammond, UK Foreign Secretary on 16 July 2015 (n 12).
 3

The Future of the Vienna Convention in a Changing World 33

public diplomacy is directed more at influencing both domestic and foreign public
opinion than it is in listening to it.44 In this context, public diplomacy might be
regarded as simply an updated form of traditional diplomacy. Nevertheless, at its
best, public diplomacy is a process of global engagement and dialogue that can
positively influence international relations.
One of the most significant developments in international relations since the
1960s has been the progress of globalization. Globalization has effected diplomacy
in at least two significant ways. First, the need for diplomatic and consular inter-
action between States has arguably increased rather than diminished, in order to
ensure that the interests of nationals living abroad are fully protected. Secondly,
the engagement of individuals, societies, and diaspora has required States to con-
sider the impact of their foreign relations on individuals living abroad. The inter-
mingling and, at times, interdependence of populations has shifted the focus of
diplomacy to more specifically commercial and, increasingly, to cultural matters,
and has forced politicians to consider the position of their own nationals in foreign
States when considering attacks of whatever form on those States in which their
nationals are resident.
The impact of globalization on the Vienna Convention is difficult to assess in
its entirety. However, some recent cases in the United Kingdom point to a need
potentially to reassess the Convention to deal with issues such as human rights
abuses by diplomatic personnel as well as the development of a trend towards the
appointment of what might be called ‘resident diplomats’. Each of these will be
considered in turn in the following sub-​sections, which will ultimately assert that
amendment of the Convention is neither necessary nor possible in response to
either of these emerging difficulties but that receiving States, in particular, should
begin more rigorously to use the existing Convention provisions to crack down on
abuse and to minimize the scope for abuse.

3.1 Balancing immunities and human rights and

the prioritization of the Vienna Convention
The balancing of the granting of international immunities with human rights con-
cerns more generally has been the focus of a considerable degree of attention in
recent years. It has given rise to significant challenges to the broad range of immu-
nities from jurisdiction, especially State and Head of State immunity in the face
of mass human rights atrocities.45 The debate is on-​going and is one to which the

44  See eg the US Department of State website which states that ‘[T]‌he mission of American public
diplomacy is to support the achievement of U.S. foreign policy goals and objectives, advance national
interests, and enhance national security by informing and influencing foreign publics and by expand-
ing and strengthening the relationship between the people and Government of the United States and
citizens of the rest of the world’, <http://​www.state.gov/​r/​> accessed 27 May 2015.
45  For an analysis of some of the key challenges see J Craig Barker ‘The Pinochet Judgment Fifteen
Years On’ in James Green and Chris Waters (eds), New Perspectives on Adjudicating International
Human Rights (Martinus Nijhoff, The Hague 2014).
34

34 In Praise of a Self-Contained Regime
present author has contributed.46 The primary concern for the purposes of this
chapter, relates to the potential impact of this debate on the specific question of
the immunity of diplomatic agents and, consequently, on the future of the Vienna
Convention.
The framework of analysis of the relationship between immunities from jurisdic-
tion and human rights draws heavily on the so-​called fragmentation of international
law described by the ILC in its 2006 Report of the same name.47 The Report argued
that international law was becoming fragmented into a number of different subsys-
tems, few of which related to one another and some of which called into question
the validity of one another.48 The response to such fragmentation can be found in
technical legal analysis drawing upon principles such as lex specialis, lex posterior,
normative hierarchy, and self-​contained regimes.49 Having established that diplo-
matic law is a self-​contained regime, one might be content to accept that diplomatic
law exists away from other subsystems of international law and can therefore func-
tion independently thereof. However, no subsystem can exist in such a vacuum. The
relationship between immunity from jurisdiction and human rights law is one that
has created a great deal of controversy in recent years. While mostly applicable in
the context of State and Head of State immunity, the problem of the relationship
between human rights and diplomatic law is steadily increasing.
The dominant narrative of the relationship between international immunities
and human rights has been focused around the concept of normative hierarchy
with many asserting that particular human rights, dealing in particular with inter-
national crimes and gross violations of human rights, have a superior status in
international law and constitute jus cogens.50 This discourse is problematic for dip-
lomatic law insofar as it has no higher status than any other subsystems of inter-
national law. Diplomatic law is certainly not a system of jus cogens norms, yet its
importance to the proper and efficient functioning of the international diplomatic
process cannot be ignored.
A better framework of analysis would be that of lex specialis insofar as is the
special importance of the Vienna Convention regime lies both in its facilitation
of international diplomacy, but also in its provision of a framework for the pro-
tection of diplomatic personnel, who are often living in hostile countries, facing
hostile day-​to-​day living conditions and require special protection in order to do
their work.51 In many ways, it is the special nature of diplomatic law in facilitat-
ing the diplomatic process and providing protection that allows it to take prior-
ity over local, civil, and criminal law. Where that law is abused, the Convention
provides the necessary remedies. This should surely be the same when the rules

46  See n 45 and J Craig Barker, ‘Negotiating the Complex Interface between State Immunity and
Human Rights: An Analysis of the International Court of Justice Decision in Germany v Italy’, (2013)
15 International Community Law Review 415.
47  UN Doc A/​CN 4/​L 682. 48  ibid paras 7–​8. 49  ibid paras 46–​222.
50  See eg Alexander Orakhelashvili, Peremptory Norms in International Law (OUP, Oxford 2008).
51  On the necessity of protecting diplomats, see further J Craig Barker, The Protection of Diplomatic
Personnel (Ashgate, Aldershot 2006).
 35

The Future of the Vienna Convention in a Changing World 35

of diplomatic privileges and immunities come into conflict with human rights
law that has not reached the level of jus cogens norms, that is, the vast majority of
human rights norms.
Recent allegations of abuse of diplomatic privileges and immunities have
focussed on the alleged abuse of domestic staff in the employ of an individual
diplomat or of a mission. Given the potential sanctions against abuse outlined pre-
viously, and the greater difficulty of condoning such abuse by failing to take action
on political grounds, it would seem that the Vienna Convention does not prevent
a receiving State from acting against an individual diplomat or against a sending
State in such cases. The problem in such cases concerns the gathering of evidence
given that the premises of a diplomatic mission and of the private residence of a
diplomatic agent are inviolable and immune from search. On the other hand, it
should be remembered that the Vienna Convention is not a mechanism of impun-
ity and does not prohibit a receiving State from investigating an alleged offence,
particularly in light of Article 38(2) discussed above.
The innovative and imaginative process recently introduced in Vienna, Austria,
which invites domestic staff of missions and diplomatic households to attend regu-
lar interviews to ascertain whether there is any cause for concern in relation to
domestic abuse, is compliant with the Vienna Convention. Insofar as States are
required to register the entry and departure of domestic staff in compliance with
the Vienna Convention, it should be possible to ensure that the vast majority of
domestic staff are interviewed where necessary.52 This can be enforced by ‘impos-
ing’ a requirement on embassies to ensure compliance. While such a requirement
is unenforceable, it can be the focus of local oversight. Examples of serious abuse
or non-​cooperation with local authorities can result in declarations of persona non
grata and the breaking off of diplomatic relations with a State where the abuse
is considered sufficiently serious. The Vienna Convention should not be seen as
a block to engagement with embassies and diplomatic agents. Insofar as it pro-
vides for remedies for abuse, it clearly provides opportunities to minimize abuse,
depending on the exercise of political will, the lack of which is itself possibly the
greatest threat to the future of the Vienna Convention.
In relation to allegations of human rights abuses that meet the threshold of
jus cogens breaches, one would hope in the first place that receiving States would
complete the due diligence and block the accreditation of an individual who is the
subject of such accusations in the first place.53 However, if that were not the case
or where allegations of gross human rights abuses were to arise during the course of
an appointment, the mechanism of declaring an individual persona non grata and
expelling them from the receiving State, perhaps with a referral to the prosecut-
ing authorities of the sending State, or of an international tribunal, such as the
International Criminal Court, would lead to prosecution and ensure compliance
with the Vienna Convention. This might seem inadequate to some, and it certainly

52  See Chapter 11, section 4.

53  On the right to block accreditation, see further below n 64.
36

36 In Praise of a Self-Contained Regime
does not sit lightly with the present author. On the other hand it is important to
recognize the impact that arresting such an individual might have on the protec-
tion of diplomatic personnel around the world.

3.2 Expanding jurisdictions and globalized living

When the Vienna Convention was drafted in 1961 the growth and impact of
globalization was unimagined. The diplomatic relations that the Convention was
designed to regulate involved the traditional exchange of diplomats who were
expected primarily to be nationals of sending States working solely to develop
the interests of that State. Some provision was made in the Vienna Convention
to regulate the privileges and immunities of nationals of third States and indeed
nationals of the receiving State,54 as well as to remove immunity from the commer-
cial activities of diplomats where that activity was unconnected with the interests
of the sending State.55 However these exceptions to the traditional, rather staid,
norms of diplomatic relations were rare.
Developments in the function and style of some aspects of diplomacy, particu-
larly high-​level diplomacy, and issues related to representation at international
organisations and the privileges and immunities of international organizations
themselves merited the development of special regimes.56 However, these regimes
were based essentially on the established rules of diplomatic law in the Vienna
Convention. The same applied to the regulation of consular intercourse.57
The situation today is considerably more complex. Diplomats come and go
much more regularly; ‘special representatives’ are sent by smaller States to embas-
sies and organizations; individuals are accorded diplomatic privileges and immu-
nities in countries in which they have extensive private interests, some of which
overlap with the interests of the sending State. One of the most significant devel-
opments since 1961 concerns the enormous expansion of both civil and criminal
jurisdiction of States.58 In terms of international criminal law, crimes that were
previously prosecutable only domestically can now be prosecuted internationally.
For serving diplomats, the precedents are quite clear in that immunity overrides
criminal jurisdiction, regardless of how local or international that jurisdiction is.59
However, that straightforward position is increasingly being challenged on the
grounds that developments in international criminal jurisdiction must be matched
by changes to the law of immunity.60 In terms of civil law, the exterritoriality of

54  VCDR arts 3 and 38. 55  VCDR art 31(1)(c).

56  See the Convention on the Representation of States in their Relations with Organizations of a
Universal Character of 14 March 1975, UN Doc A/​CONF 67/​16 and the Convention on Special
Missions of 8 December 1969, 1400 UNTS 231.
57  Vienna Convention on Consular Relations of 24 April 1963, 596 UNTS 261.
58  See for a full discussion of jurisdiction and immunities Alexander Orakhelashvili (ed), Research
Handbook on Jurisdiction and Immunities in International Law (Edward Elgar, Cheltenham 2015).
59  The VCDR simply immunizes diplomatic agents from criminal jurisdiction regardless of the
source of that jurisdiction, VCDR art 31.
60  See further Barker (n 51).
 37

The Future of the Vienna Convention in a Changing World 37

jurisdiction is giving rise to a situation where claims unrelated to the diplomatic

intercourse between the two States involved are being challenged in the domestic
courts of sending States.61
The matter is complicated slightly by the emergence of a category of diplomats
or other representatives who are not permanently resident in the territory of the
receiving State but who have business interests there and, perhaps, own property
there.62 The Vienna Convention does except from immunity civil cases concern-
ing a real action relating to private immovable property and actions relating to
professional and commercial activities by a diplomatic agent outside his official
functions. Nevertheless, it would appear that these exceptions are rather limited as
highlighted by two recent cases in the British courts.
The first concerned Dr Wahid Juffali, a Saudi Arabian national appointed as
the representative of St Lucia to the International Maritime Organisation based
in London.63 Juffali asserted diplomatic immunity in response to court proceed-
ings brought by his ex-​wife Christina Estrada, a former supermodel. The British
government, perhaps unusually for such a private case, requested St Lucia to waive
Juffali’s immunity. The St Lucian Government opted not to, asserting their rights
as a sovereign State ‘in order to uphold the principle’ of diplomatic immunity.
Given the analysis of the right of waiver set out above, this was neither unusual
nor was it out of line with State practice. Crucially for this case, there are no
restrictions in international law concerning the appointment of non-​nationals to
such positions, and it is common practice in the Caribbean for States to do so. At
the time of appointment, the IMO did not raise any questions relating to Juffali’s
credentials. More importantly, the UK did not raise any concerns and immediately
added Juffali to the Diplomatic List, thereby confirming his diplomatic status and
entitlement to full diplomatic immunity.
The UK Government, and more specifically the Foreign and Commonwealth
Office (FCO) is the gatekeeper for determining who is entitled to diplomatic
immunity in the UK. As analysed above, the Vienna Convention allows sending
States a free choice of whom to appoint to specific diplomatic roles. However, it
also allows a receiving State to decline the nomination, by declaring the individual
persona non grata prior to his or her attaining full diplomatic status.64 This would
have been the time to question the appointment of Juffali, if indeed there had been
any concerns.

61  ibid for a discussion of relevant cases.

62  Permanent residents of the receiving State are given immunity only in respect of their official
acts in the case of diplomatic agents (VCDR art 38(1)) and only to the extent where such privileges
and immunities are admitted in the case of other members of the mission and private servants (VCDR
art 38(2)).
63  The position of State representative to the IMO in London carries full diplomatic privileges
and immunities for the incumbent as provided for in the International Maritime Organisation
(Immunities and Privileges) Order 2002.
64  Article 9 of the Vienna Convention allows a State to declare an individual persona non grata ‘at
any time and without having to explain its decision’. The effect of this wording, when read with arts 5,
8, 10, and 11 of the Convention allows the receiving State to declare an individual persona non grata
prior to his or her arrival.
38

38 In Praise of a Self-Contained Regime
One of the most obvious concerns in the context of the present discussion should
have been the considerable immovable assets held by Juffali in the United Kingdom.
It is likely that Juffali’s ex-​wife, who is not herself a British national, brought the
case in the UK because of that fact. The assets themselves provided the jurisdictional
link sufficient to allow her to bring the case in the UK Courts. Insofar as Juffali’s
immunity had not been waived and he had not been declared persona non grata his
immunity remained and Juffali’s assets were immunized. This has the potential to
create significant difficulties in major capital cities around the world if the trend of
appointing such individuals continues. However, the remedy already exists. Given
the above analysis, it is open to a receiving State simply to refuse to accredit a State
representative if to do so would immunize significant assets. For that reason, it is
important that the authorities of receiving States should undertake the necessary
due diligence when deciding whether or not to accredit a State representative to a
position that brings with it diplomatic privileges and immunities
An alternative reading of such appointments has been suggested; that the major-
ity of such appointments are shams. Furthermore, it has been asserted that in the
case of ‘sham’ appointments, diplomatic immunity could simply be removed. This
was the view taken by Mr Justice Hayden at first instance in the case of Estrada v
Al-​Juffali.65 While superficially attractive, such an option is replete with problems.
First, it would require complete renegotiation of the Vienna Convention. Secondly,
it would generate conflict between sending States and receiving States about when
an appointment is sham and when it is not. If the UK were unilaterally to adopt
such an approach, not only would it be in direct contravention of international
law, it would also open up British diplomats serving abroad to claims that they
were not doing their job (according to officials of the receiving State) and expose
them to the removal of immunity by the receiving State without recourse to their
home country. Ultimately such an approach would render diplomatic immunity
useless and would wholly undermine international relations. Although Al-​Juffali’s
appeal failed, the question of his appointment as a diplomat was declared not to be
reviewable by the British courts.66
A second on-​going civil claim in the British courts that has been met with a
claim of immunity is that of the former Prime Minister of Qatar, Sheikh Hamad
bin Jassim bin Jaber al-​Thani, who is facing a civil claim for compensation for
torture allegedly carried out against a British citizen under his authority. Al-​Thani
was appointed as Minister Counsellor in the Qatari Embassy in London and that
appointment was accepted by the Foreign and Commonwealth Office. The circum-
stances of this case are considerably more problematic insofar as they involve alle-
gations of torture and possibly invocation of an argument for removal of immunity
based on a breach of a jus cogens. The current jurisprudence of the English courts
would mitigate against that but courts appear to become increasingly frustrated

65  Estrada v Juffali [2016] EWHC 213 (Fam) (08 February 2016).

66  Al-​Juffali v Estrada [2016] EWCA Civ 176 (22 March 2016), Al-​Juffali’s diplomatic immunity
was not upheld on appeal because of his permanent residence in the United Kingdom.
 39

Conclusions 39

with the assertion of immunity in such cases. Once again, however, it is asserted
that the problem lies with a failure of due diligence by the United Kingdom gov-
ernment. It is likely that the FCO was aware of allegations of torture being made
against Al-​Thani prior to acceptance of his appointment as Minister Counsellor.
Furthermore, Al-​Thani appears to own a string of luxury hotels in the UK. The jur-
isdictional issue in this case was not dependent on the ownership of property in the
UK given the fact that the claimant was a British national. Nevertheless, the effect
of accepting Al-​Thani’s appointment was to immunize him and his property from
a claim of this nature in the UK. His immunity was upheld by the High Court in
February 2016 in the case of Al Attiya v Bin-​Jassim Bin-​Jaber Al Thani.67 Mr Justice
Blake in that case refused to entertain assertions that Al-​Thani’s appointment was
a sham.
The response of many to the changes to diplomatic process brought about by
globalization since 1961 and their impact on the Vienna Convention has been to
call for a renegotiation of the Convention itself. Such calls came as early as 1984
as an obvious response to the murder of WPC Fletcher. Indeed this author under-
took his own PhD with that exact solution in mind. However, the review of the
Vienna Convention conducted by the Foreign Affairs Committee and the British
Government in response to the murder of Yvonne Fletcher was to the effect that ‘the
difficulties in the way of achieving any restrictive amendment to the Convention
and the doubtful net benefit to the UK of so doing, it would be wrong to regard
amendment of the Vienna Convention as a solution to the problem of the abuse of
diplomatic privileges and immunities’.68 The Government agreed with this assess-
ment at the time and would be right to do so again today.
The Vienna Convention, as a self-​contained regime, provides both the rights
and the remedies for abuse of those rights. Those remedies are not perfect but they
are the best that the parties could agree. To think that more restrictive remedies
could be agreed today is fanciful. That having been said, more political will to
enforce the existing provisions of the Vienna Convention, would go a consider-
able way to clamp down on and deter further abuse of the Convention from the
basic but often highlighted parking offences, to abuse of domestic staff, to sham
appointments and ultimately to murder. Crucially, as highlighted by the analysis
above, a greater willingness of States to refuse to accept appointed representatives
who raise concerns, as permitted by Article 9 of the Vienna Convention, would go
a long way to reducing the potential for abuse.

4. Conclusions

The Vienna Convention’s success is ongoing. It is dependent on a number of

key factors. First, the Convention is bilateral and, to a large extent, symmetric.

67  Al Attiya v Bin-​Jassim Bin-​Jaber Al Thani [2016] EWHC 212 (QB) (15 February 2016).
68  Foreign Affairs Committee (n 11) para 11.
40

40 In Praise of a Self-Contained Regime
Although a State may be larger or smaller, powerful or weaker, popular or hated,
the Vienna Convention underscores the importance of sovereign equality that is
enshrined in the United Nations Charter. States do not have to have diplomatic
relations with one another and some choose not to but the vast majority do and
they rely on the Vienna Convention to facilitate the performance of diplomatic
functions and to ensure the protection of their representatives. Those represent-
atives are essentially responsible. They take seriously their duties to their home
States and to the maintenance of good relations between the sending and receiving
State. Occasionally persons entitled to diplomatic privileges and immunities will
take advantage of their position and abuse those rights. This is undoubtedly the
exception rather than the rule. When that happens, the self-​contained nature of
the Vienna Convention has already set out the remedies that should be adopted.
Some may argue that the ‘punishments’ contained in the Convention are not
enough and where States do not investigate and, where appropriate, punish a dip-
lomatic agent who is expelled from a State after an accusation of abuse then that
argument appears well founded. However prevention is better than cure. The
UK review of diplomatic privileges and immunities after the shooting of Yvonne
Fletcher identified a number of ways in which the application of the Convention
could be strengthened, particularly though the administrative measures. Recent
history of FCO oversight of the accreditation of diplomats and State representa-
tives on the face of it, does not suggest that sufficient lessons have been learned
from that process.
Ultimately, it is asserted that the Vienna Convention remains today, and for the
foreseeable future, the best and most widely accepted legal regime for the regula-
tion of diplomatic relations. It remains only for States to take a more considered
and less political approach to its implementation even if to do that might risk some
short-​term difficulties.
 41

Part II
History
42
 43

4
Views of a Delegate to the 1961 Vienna
Conference
Nelson Iriñiz Casás

1.  From Uruguay to Vienna

After the International Law Commission (ILC) had submitted its final set of ‘Draft
Articles on Diplomatic Intercourse and Immunities’ in 1958, the UN General
Assembly decided to convene a conference of States, which was to take place no
later than spring 1961 in Vienna. Its task would be to work out, on the basis of the
draft articles, a binding convention on the topic. The instrument which resulted
from this stands today as one of the most important and most widely ratified trea-
ties in the world—​a treaty which was given the title of the ‘Vienna Convention on
Diplomatic Relations’ (VCDR).
I was, at that time, head of the mission of the Republic of Uruguay to Austria.
That I would be chosen to represent my country at the conference, may not seem
surprising—​it is not uncommon that diplomats who are already at the seat of the
conference, become delegates to it. (At Vienna, Monsignor Casaroli, effectively
the Vatican’s Deputy Foreign Minister, nicknamed us locally accredited diplomats
‘The Viennese’). And yet, my presence in Vienna was no accident.
In fact, it had been my second posting to Austria. I  had taken up position
as First Secretary of our mission in Vienna as early as 1954. Two months after
my arrival, the Minister of the Uruguayan Embassy (Colonel Blanco) went back
home, and I became Chargé d’Affaires ad interim with overall responsibility for
the mission. I remained in charge of the mission in Vienna until 1959, when I was
made head of our mission in Czechoslovakia.
In the twenty-​first century, it may be difficult to imagine what life was like
behind the Iron Curtain. But it is worth reflecting on the circumstances of the
time—​they had a significant impact on our work as diplomats and were to influ-
ence the negotiations at Vienna as well. In Czechoslovakia and in other countries
of the Soviet bloc, people in general were kept in the dark about what was going
on in the free world. Officials blocked Western news or at least adapted the con-
tents to the taste of the respective secret services. Foreign diplomats, too, faced
numerous restrictions, and building a work environment in which one could deal

Views of a Delegate to the 1961 Vienna Conference. Nelson Iriñiz Casás. © Nelson Iriñiz Casás, 2017.
Published 2017 by Oxford University Press.
4

44 Views of a Delegate to the 1961 Vienna Conference

with confidential information became a particular challenge. As Chargé d’Affaires
of a small mission in Prague, for instance, I did not find it easy to carry out my
work when the secretaries, service staff, gardener, and chauffeur were all nomi-
nated by the Czechoslovakian government. Travel restrictions further limited the
reach of diplomatic activity. To gain some liberty, I established a Committee on
Trade Exchange between Uruguay and Czechoslovakia. As its President, I had the
freedom to move in the country far beyond the boundaries that were set to my
Western colleagues. But the Cold War had repercussions that were felt in countries
outside the Soviet bloc as well, and at the Vienna Conference, we were well aware
of the climate it created.
In 1959, my government appointed me to the delegation of the Republic of
Uruguay to the 14th session of the UN General Assembly, where I mainly worked
in the Sixth Committee (Legal). It was the Sixth Committee that had, in 1952,
discussed the proposed codification of diplomatic law and had in the same year sub-
mitted the resolution calling on the ILC to deal with the matter as a ‘priority topic’.
In 1957, it was the same Committee that discussed the first set of draft articles
on diplomatic law which the ILC had submitted to the General Assembly. It was
therefore the ideal place for me to meet some of those who had been involved in the
codification of diplomatic law, and some friendships resulted from these contacts.
The delegate who was sitting next to me in the Sixth Committee was Ernest Kerley,
who would later be Legal Adviser to the US delegation at the Vienna Conference.
When the 1959 session of the General Assembly came to an end, I  did not
return to Prague but was sent to Vienna in the official capacity as head of the mis-
sion of Uruguay. It was a strategic move. By then, it was known that the Vienna
Conference would take place in early 1961, and the importance of the event was
appreciated by members of the international community, including my own State
(in the end, no less than eighty-​one States participated in the conference). By send-
ing me to Vienna at this early point, I had about one year to revive old contacts
and to prepare for the Conference, during which I had the honour to serve as one
of the two Vice Presidents of the Committee of the Whole.

2.  The Cold War and the Latin American Delegations

At the time of the Vienna Conference, Austria was a neutral country. But it, too,
was shaped by the conditions of the Cold War, and this was the environment in
which our negotiations took place. It was estimated that Austria and its border-
ing region was, in the 1950s, home and target of nearly 3,000 spies of the Great
Powers from both sides of the Iron Curtain. Not all of the implications of the Cold
War were known at the time. For instance, I learnt only in 1990, after the fall of
the Berlin wall, that Sergey Kondrashev, a member of the Soviet delegation at the
Vienna Conference, had been affiliated with the KGB.
But in other areas, the influence of the Cold War was quite clear, especially to
delegations from Latin American States like Uruguay. In the early years of the Cold
 45

The Cold War and the Latin American Delegations 45

War, Latin American Foreign Ministries had ordered their delegations to vote at
conferences in the manner indicated by the delegation of the United States. After
this decision had caused criticism in the parliaments of the few Latin American
democracies, it was changed to a policy of voting in line with most other Latin
American countries. In fact, this policy was much like the old one, because the
majority of States took the line of the United States.
At the same time, it would have been difficult to speak of a coherent political
system in Latin America. Several Latin American States were dictatorships, others
were democracies; Cuba, which had recently adopted a communist system, was
not considered a member of our bloc, as she followed the USSR line.
There were also considerable differences between the political positions of indi-
vidual delegates. Many of the Latin American delegates had a personal track rec-
ord of supporting political movements opposed to Soviet communism. Others
opposed what they considered as US imperialism, and were joined in this by the
head of the Spanish delegation, Ambassador José Sebastián de Erice y O’Shea, who
represented a dictatorial government that had remained neutral during the Second
World War. My own position, which was one of anti-​communism, was not excep-
tional either. I had been part of the UN Special Committee that studied the Soviet
invasion in Hungary in 1956—​an experience that had not changed my views of
the Soviet regime.
Given this considerable divide between political views, backgrounds, and per-
sonalities, one may wonder how it was possible to carry out constructive work on a
complex matter of international law and achieve effective results. To a degree, this
was made possible through the efforts of the Austrian Foreign Ministry, through
the skills of the conference leadership and of individual delegates. But it also helped
that many of the delegates had met before. I would estimate that, at the cocktail
reception before the opening of the conference, about a quarter of the attending
delegates had the chance to talk to colleagues whom they knew from other con-
texts: from previous conferences at the UN or their postings to Vienna.
The Austrian Foreign Ministry (which was represented with a dozen diplomats
at the event) and the locally accredited diplomats (the ‘Viennese’ group) were
accustomed to the mentality of Eastern European countries and keen to bridge
the gap between East and West. Our attempts were mirrored by delegates from
Hungary, Czechoslovakia, and especially the Romanians who were the most curi-
ous ones and most open to the idea of conversing with Western representatives.
This mutual interest contributed to an unusually positive atmosphere which lasted
throughout the entire conference.
It was at those informal meetings at the very beginning of the conference when
the value of the participation of the Viennese as a link between East and West
became apparent. However, group cohesion was not really established with those
who, before the conference, had no opportunity of putting aside their fear of dele­
gates of communist countries. Contacts between communist delegates and those
from Mexico, Ghana, the Philippines, or Lebanon in particular remained lim-
ited. Additionally, despite the overall positive atmosphere, some delegates still had
46

46 Views of a Delegate to the 1961 Vienna Conference

questions about the need for a convention and about realistic prospects of reaching
consensus on the most controversial points.
At later stages of the conference, some delegates were particularly helpful
in overcoming the differences between participating States. The Guatemalan
delegate—​ Dr Linares Aranda (who was also his country’s Ambassador to
Germany)—​joined a group of other diplomats in Café Hawelka and was able
to make a particularly important contribution, as he had influence over various
delegates from Latin American States whose peoples lived under authoritarian
regimes and were therefore not closely aligned to the government I represented.
His legal knowledge and distinguished diplomatic career (he had previously
been Ambassador to Washington and the Guatemalan Minister of Foreign
Affairs) suggested from the outset that he would be a trusted colleague and con-
fidante; and he studied each of the amendments, which we wanted to present,
with great care.
Linares Aranda was also helpful in facilitating contact with the Cuban delegate,
who was one of his friends. At that time, dealing with Cuban delegates in inter-
national fora had not been an easy matter. At the UN in New York, for instance,
conversations among members of the Latin American bloc would immediately
turn to trivial matters as soon as a Cuban delegate was within earshot. (Some
Cuban delegates exploited that: they would stand in the room for a few minutes,
then leave it, then suddenly reappear, in order to obstruct the work of their Latin
American colleagues.) No such difficulties arose in Vienna; in fact, at some point,
the Cuban delegate accompanied us to Café Demel, where some of our discussions
took place; and our talks did not suddenly stop on his account.

3.  Leadership of the Conference

An important reason for the fact that we were able to bridge the political divide
and to reach consensus even on controversial questions must be seen in the extra-
ordinary leadership from which the conference benefitted.
The appointment of Professor Alfred Verdross as President of the Conference
was particularly helpful. That he was envisaged for this position was a decision
which had not been publicly discussed—​it had been made even at the time when
Vienna had been chosen as conference venue. The diplomatic missions at Vienna
received confidential notes about this, and it was brought to the attention of those
delegates who were not accredited in Austria. The United States, initially, had some
hesitation on the matter. But Verdross had already done brilliant work in the ILC,
and his outstanding performance during the pre-​negotiations guaranteed his elec-
tion as President of the Conference. His vast expertise was of invaluable help in
clarifying the meaning of the individual provisions, and he provided insightful
guidance throughout the conference.
The other major role in the organization of the conference fell to the Chairman of
the Committee of the Whole. The decision had been made to entrust that position
 47

Leadership of the Conference 47

to the delegate of a Commonwealth State who would be able to attract support

among many of the participating States. In the end, the choice fell to Shri Arthur
S Lall, who was then accredited to India’s mission in Austria. We ‘Viennese’ were
very pleased with the appointment—​Ambassador Lall was highly respected and
well-​known for his diplomatic skills. He led his session with prudence and discre-
tion and showed these qualities outside the conference halls as well. Although he,
too, was locally accredited, he never came to our meetings at Café Hawelka. Instead,
he preferred to meet with the British, Asian, and Commonwealth delegations.
From a Latin American perspective, there was a third delegate whose contri-
bution to the success of the conference was of particular importance: the afore-
mentioned Ambassador Erice y O’Shea, head of the Spanish delegation and an
invaluable facilitator among the Latin American group. He was in more than one
regard an unlikely choice for that position. For one, Spain was, in 1961, still under
the Franco dictatorship that maintained close diplomatic relations with only a
handful of States. As a result, the Spanish delegation was usually isolated at inter-
national conferences, not least because some, like the Mexican delegation, would
not work with representatives of dictators. However, I had known Erice y O’Shea
since my early days in Vienna, when he headed the Spanish mission. During that
time, he demonstrated indisputable legal expertise which he owed to his time as a
law professor and internationally acclaimed legal authority having authored several
books on public international law.
During the conference, I took advantage of my position as Vice Chairman to
make the best use of the qualities of my friend. Officially, I could not intervene
in the work of delegations. However, I  managed to convince some of the most
diligent Latin American colleagues, in particular those of Colombia, Brazil, and
Guatemala, to accept Ambassador Erice y O’Shea within the Latin American
group. Just for the purposes of the Vienna Conference, he thus effectively became
Latin American—​a procedure that had never been adopted at the UN before 1961.
As the facilitator of our amendments and proposals, his legal standing gave more
weight to the voice of the Latin American delegations. He was happy to fulfil this
role because he missed his classes at university, and having centre stage at the com-
mittee meetings gave him the opportunity to discuss detailed legal issues in front
of an audience that did not stop listening with interest. As a result, Professor Erice
y O’Shea became the most active delegate at Vienna. He regularly took part in the
sessions of the Committee of the Whole to which he submitted numerous Spanish
amendments and sponsored many of the Latin American ones.
On 6 March 1961, the Vice Chairmen of the Committee of the Whole were to
be elected. Before the session began (which was to be chaired by Lall), the delegates
formed several groups in the cafeteria. On that occasion, Sergey Kondrashev, First
Secretary at the Soviet Embassy to Vienna (and member of the Soviet delegation
chaired by Grigory Tunkin, the international legal scholar) had a talk with the
Colombian delegate. Kondrashev told him that the Soviet bloc proposed having
two Vice Chairmen so that the weight of drafting the Convention could be better
shared. He suggested that the Latin American bloc should vote for the delegate of
48

48 Views of a Delegate to the 1961 Vienna Conference

Uruguay (myself ) for one of the posts and should in turn accept the Polish dele­
gate, Professor Henry Birecki, for the other one.
Given my well-​known political stance, the Soviet proposal may, at first glance,
have seemed surprising. At a closer look, it made perfect sense. My anti-​communist
reputation justified Birecki’s candidacy, which initially had triggered the resistance
of the USA, whose tendency to seek the rejection of Soviet candidates for critical
conference positions was well known. And given my close relationship to Ernest
Kerley, the US could be convinced to agree to Birecki and to make an exception
to her policy.
The Colombian delegate conveyed that message to Erice y O’Shea, who quickly
embarked on the necessary consultations with Stavropoulos as the Representative
of the UN Secretary General and delegations from other blocs, which accepted the
proposal. When the moment arrived at the session, Erice y O’Shea proposed my
candidature, which was approved by acclaim.
This trade-​off also secured the appointment of a European candidate for the
post of Rapporteur of the Committee of the Whole. It had been known to us since
the very beginning of the Conference that the European delegations would push
for the nomination of the Dutch legal adviser, Willem Riphagen. It was also an
open secret that the conference would seek to form a committee to deal with the
topic of ad hoc diplomacy, which was to recommend further research to pursue
separate codification of the subject at a later stage.

4.  Café Diplomacy

I have mentioned meetings in Café Hawelka and Café Demel. That, in fact, was
an aspect of our work that should not be underestimated. As those familiar with
diplomatic conferences know, important parts of negotiations often take place in
(seemingly) social settings—​over lunch or coffee, but also through ‘private’ invita-
tions at the fringes of the conference.
In Vienna, ‘café diplomacy’ nearly became an art form. At lunchtime, for
instance, if I did not have any official functions to attend, I would usually go
to Hotel Sacher, where a table had been reserved for me in the Blue Bar since
before Austria had become independent. It became my venue of choice for all
kinds of meetings. My guests, both international and local, appreciated the oppor-
tunity to visit this historic place where Tafelspitz (a Viennese specialty) was on the
menu and a pianist was softly playing Mozart and Stolz. I also hosted my Austrian
friends—​academics, students, journalists, artists, scientists, and members of the
nobility—​at the Palais Pallavicini and at my own home in Mahlerstraße, opposite
the International Atomic Energy Agency (IAEA). Others came, too—​friends and
colleagues from Western States, Eastern Europeans, and Africans. Among them
was Monsignor König who, years later, would present Cardinal Wojtyła to the
Vatican conclave as a candidate for the papacy.
 49

Personalities at Vienna 49

I was not the only one who engaged in café diplomacy. Pâtisserie Demel, which
had been a favourite of the Austrian Emperor Franz Joseph because of its famous
chocolate cake, was also popular with the ‘Viennese’ group. We would invite our
colleagues from smaller States to this café to enlist their help in drafting certain
articles—​such as Articles 11, 12, and 41—​when it was particularly important to
protect the interests of small States while still allowing a version to emerge which
could meet with the approval of the Great Powers and the support of the negotiat-
ing States in general.
But the Viennese group also met with non-​aligned and more independent dele­
gates as well as others who tended to lengthen the debates during the conference
by repeatedly adding articles for consideration. The delegate of the Philippines,
for instance, had, early on, raised the position of the heads of some international
organizations in the host country and suggested their inclusion in the draft. But
there was reason to consider amendments of this kind with some suspicion. Those
of us who had experience of international organizations knew that the members
of short term missions were, often enough, friends of the relevant governments,
who were rewarded with trips to attractive and exotic countries but had no desire
to do any strenuous work. This often happens in places where the UN maintains
headquarters or holds conferences. It was for that reason that a decision was made
in the end to postpone the issue and to call attention to the government officials
who were favouring their friends and other freeloaders in this way.
The Vatican diplomats were among those whom we were not able to persuade
to join us at Demel (or at Café Hawelka). They preferred to go, together with
other delegates, to the events organized by the Austrian Foreign Ministry or one
of the embassies: visits to a Heuriger (tavern) in the mountains around Vienna, to
the Staatsoper or the Volksoper, Schönbrunn, and Belvedere, followed by lunches,
dinners, and receptions which were offered throughout the conference.

5.  Personalities at Vienna

There are several delegates whose position and performance at the Conference were,
to my mind, memorable. Constantin Stavropoulos, for instance, Representative of
the Secretary-​General at the conference, was an old acquaintance. We had met
before in France, at the Château Saint Jean Cap Ferrat, the house of our mutual
friend, Ernie Kanzler, which was perched over the Mediterranean. Kanzler was
the uncle of Henry Ford II and adviser to several US Presidents. During July and
August of each year, he would host daily lunches, attended by around thirty aca-
demics, diplomats, and politicians, sometimes including Prince Rainier and Grace
Kelly. At the end of the Vienna Conference, it was a great pleasure to be invited
to Stavropoulos’ table and to be seated next to Rosemarie Kanzler, Ernie’s wife,
who had arrived especially from Detroit to attend the end of conference reception
dinner.
50

50 Views of a Delegate to the 1961 Vienna Conference

Stavropoulos had arrived in Vienna with a delegation of UN officials spe-
cializing in international law. Together with his team, he visited Café Hawelka
on two occasions and cast a watchful eye on the behaviour of each delegation.
Stavropoulos also served as Acting President of the Conference before Verdross
was elected President.
Verdross himself was a jurist and legal academic expert sui generis. He was an
international personality whose expertise was recognized by the universities of the
States represented at the Vienna Conference. His book Public International Law,
which had been published shortly before the Vienna Conference began, became
obligatory reading in law schools all over Latin America and Spain.
I remember Sir Francis Vallat, chairman of the European bloc of democratic
States, as one of the most active and capable members of the Conference. He was
distinguished, remarkable, and performed outstandingly throughout. Close to his
Commonwealth colleagues, he possessed wit, intelligence, authority and was able
to rely on the considerable legal assistance of the British delegates.

6.  Topics at Vienna

What were the issues which were of particular importance to us during the
conference?
There are four matters which I would like to highlight in view of their signifi-
cance and the fact that they offer good illustrations for the negotiating procedure
at Vienna. They were the debates on (today’s) Articles 11, 27, and 41 and the mat-
ter of diplomatic asylum.
Article 11 deals with the fact that the receiving State may require the size of the
mission to be kept within limits which it considers ‘reasonable and normal’. On
reading it, one may get the impression that a ten year old could have written it. In
fact, the article took an entire week of cordial meetings at Pâtisserie Demel, with
the Polish and Czechoslovakian delegates, and at one point with Sergei Kondrashev
of the Soviet delegation and the Guatemalan delegate. I also had a meeting just
with Ernest Kerley of the US delegation in Demel, in which I managed to get him
to agree that he would present a compromise amendment which would not preju-
dice the position of the smaller States.
Article 11 and Article 12 (requiring the consent of the receiving State if offices
of the mission are to be established in localities other than those of the mission
itself ) are rules which, like few other provisions in the convention, illustrate the
different positions of smaller and greater actors in the international community.
It was not uncommon for some of the Great Powers to use diplomacy as a means
of espionage, and there was thus an advantage to having armies of diplomatic
officials and premises outside the capital. That did not apply to the same degree
to other States. The Great Powers, however, did not want to accept wording that
would deprive them of the option to freely manage the number of officials in their
diplomatic missions and to deploy them in their cultural or other centres in the
receiving State. Smaller States, on the other hand, had a considerable interest in
 51

Topics at Vienna 51

retaining control over the number of members that could be assigned to a diplo-
matic mission.
During the conference and at Café Demel, several drafts were thus confiden-
tially prepared in an effort to reach a conclusion that would neither adversely affect
small countries nor unduly favour larger States as the greatest beneficiaries.
But the drafting of Article 11 also showed that very specific, contemporary con-
cerns at times had an impact on the shape which the VCDR eventually assumed.
In Demel, the US delegate Kerley and I reached a deal under which we agreed that
he would present a compromise amendment and I accepted that my government
would decrease the number of staff of the Soviet Embassy in Montevideo, and that
its officials would not visit districts bordering Brazil and Argentina before advising
the Foreign Ministry of their plans. These were matters which had been of concern
to the United States (and we did indeed follow up on this point in Uruguay).
Article 27 enshrines the principle of freedom of communication of diplomatic
missions, but it also lays down the rule that the mission may install and operate
a wireless transmitter only with the consent of the receiving State. The point was
of some relevance to the Soviet Union: the USSR had not forgotten the activities
of Radio Free Europe in Germany during the Hungarian uprising, encourag-
ing the people of Hungary to resist the invasion of Soviet troops. The result, at
Vienna, was a protracted discussion—​it needed the skilful intervention of the
British delegate to overcome this difficulty and reach consensus on the drafting
of this paragraph.
A further topic of debate—​also in Article 27—​was the inviolability of the diplo-
matic bag. Today, fifty years after the drafting of the VCDR, it is my duty to state
that none of those present at the conference, in the General Assembly, or even in
the ILC had spoken about the issue that amazes us now: the use of the diplomatic
bag to traffic cocaine. It took the international press to raise that issue and bring it
to the attention of the general public.
Article 41(1) VCDR contains the rule that diplomatic agents are not allowed to
interfere in the internal affairs of the receiving State.
The official conference records make it appear as if this had been a provision
that caused no controversy and whose adoption had been a straightforward mat-
ter. The reality was somewhat different. It took time to draft this norm which has
great importance in light of the tendency of Great Powers to interfere in political
affairs of the host State, and it gave rise to interesting discussions which took place
outside the conference hall. Neither the USA nor the USSR wanted to accept
the draft which had been adopted following strong pressure by the smaller coun-
tries. And yet, today it is not only the Great Powers that violate this rule, but also
smaller States. Instances of that are currently happening in Latin America, as I had
the opportunity to point out in Uruguay, when the rule was violated both by the
Ambassador of Venezuela and the Ambassador of the United States.
The topic of diplomatic asylum was of importance to Latin American States. In
Latin America and in Haiti, diplomatic asylum has roots not only in politics and
diplomatic practice, but also in law—​customary law as well as treaties that apply
in our region.
52

52 Views of a Delegate to the 1961 Vienna Conference

However, as a general rule, diplomatic asylum is not accepted in the rest of the
world, and the so-​called active asylum seeker is rejected, except in very rare and
exceptional circumstances. Only Portugal and Spain have tolerated passive asylum
seekers, and only then in times of great revolutions.
At the time of the Vienna conference, one of the most famous asylum seekers—​
Cardinal József Mindszenty—​was still in the US Embassy in Hungary, following
the defeat of the 1956 revolution. He was to stay there for many years after our
deliberations had come to a close, until laborious and complicated negotiations
permitted his departure after fifteen years. In light of that, the Soviet bloc was not
interested in dealing in detail with the right of asylum.
The solution which was adopted in the VCDR, satisfied all sides:  protection
was given to the asylum seeker only as a result of the inviolability of the mission.
That only prevented arrest on mission grounds, without generating further conse-
quences. This simple protection was based on a fundamental prerogative of diplo-
matic missions which had already existed under customary law and was enshrined
into treaty law in the form of Article 22 VCDR.

7. Reflections

More than fifty years have passed since we agreed on the text of the Vienna
Convention. In light of that, the time may be ripe for an assessment of the treaty
and a reflection on its ability to meet the challenges which it has encountered since
1961. There are three observations which I would like to offer in that regard.
The first concerns a particular provision which I have mentioned before: Article
27 VCDR and the inviolability of the diplomatic bag.
Violations of that rule abound. And these are not minor misdeeds. Items smug-
gled in diplomatic bags can cause great danger to the receiving State and indeed
to mankind. The fact must be recalled that attempts have been made in the past
to smuggle considerable amounts of cocaine and other drugs through diplomatic
bags. Conduct of that kind inflicts serious damage on States in all parts of the
world. There can be no doubt that Article 27 VCDR requires reform. We ignore
the difficulties to which it has given rise at our own peril.
Secondly, any attempt to reform the Vienna Convention must take into account
current political conditions, for every treaty will be negotiated by representatives of
governments which, be they good or bad, honest or corrupt, make up the family
of the UN. The VCDR is a widely ratified and, to that extent, successful instru-
ment: it is the ABC of modern diplomatic law. But the fact remains that its text
has moved away from the political realities on the ground.
That is not a matter which is confined to the Vienna Convention. It is a problem
that is reflected, on an even wider scale, at the UN, which is still dominated by the
dictatorship of the five permanent members of the Security Council. In both cases,
reform is, at times, proposed: during the US presidential campaign of 1968, the
Democratic candidate stressed the importance of reform of the UN Charter. We
are still waiting for that reform.
 53

Reflections 53

There are lessons to be learned for the future of the VCDR. Reform is essen-
tial: it is, in particular, important that the modern regime of diplomatic law pro-
vides members of the international community with effective sanctions to deal
with the abuse of diplomatic immunity. The absence of such sanctions has led
to the situation with which we are faced today: a situation in which breaches of
the Vienna system have become commonplace. Yet any attempt at revision of the
1961 Convention must take into account the current political environment and
contemporary political needs if it wants to achieve results which are respected,
observed, and widely accepted.
My third and final point concerns those who should be involved in reform of
the Vienna Convention. It is increasingly clear that effective reform cannot be
achieved in the old ways and through the usual suspects. One must not be sur-
prised if civil society has lost faith in a system which is dominated by grandstand-
ing declarations by international personalities of the ‘old school’—​representatives
who engage in old-​fashioned forms of conference diplomacy (I compliment you,
you compliment someone else, who in turn compliments me). What is required,
is a fresh and objective look at diplomatic law and international law in general.
What we need, is the jurists’ surgical intervention—​the involvement of impartial
minds, motivated by an interest in the law itself and capable of devising solutions
to the problems it encounters, to work towards the establishment of a new and
effective international order. Academics therefore must appreciate the importance
of diplomatic law and can no longer afford to hide in ivory towers. Those who
are suffering under oppression and abuse will appreciate their voice. Solutions are
possible. But they can only be achieved if scholars and diplomats are willing to lis-
ten to one another, to share their expertise, to accept constructive criticism and to
work together towards the creation of a new system of diplomatic law which truly
serves as a foundation of friendly relations around the world.
54

5
On the Road to Vienna
The Role of the International Law Commission in the
Codification of Diplomatic Privileges and Immunities,
1949–​1958

Kai Bruns

The VCDR is looking back on more than fifty extraordinary successful years since
its coming into force in 1964. It has become the reference for the regulation of
diplomatic relations between States, and the privileges and immunities granted
to their representatives. By 2016, the VCDR had been accepted by 190 parties
which literally turned its provisions into general international law. As a matter of
fact, be it for micro island States such as the Republic of Seychelles or for United
Nations non-​Member Observer States such as Palestine (the VCDR’s most recent
party since April 2014), acceding to the VCDR has become a natural thing to do.
The high degree of acceptance is an expression of its recognition and makes the
VCDR, to say it with the words of Eileen Denza, ‘a cornerstone of the modern
international legal order’.1 With the wisdom of hindsight, the codification of dip-
lomatic law has been an event of exceptional political and legal significance, com-
ing as it did, shortly after the end of the Second World War, at the height of the
Cold War, and amid the on-​going process of decolonization.
When explaining the success of the VCDR regarding States’ adherence, authors
have put forward a number of different arguments. Both Philippe Cahier and
Eileen Young (later Denza) stressed that the subject matter lent itself towards
codification since diplomatic relations were based on long-​established diplomatic
practice.2 Auto-​regulated by reciprocity, diplomatic law disposes of permanent and
effective sanctions which have enhanced States’ observance of the codified rules.
Ernest Kerley, official advisor of the US delegation at the Vienna Conference, in

1  Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations,

(OUP, Oxford 2008) 1.
2  Philippe Cahier, ‘The Vienna Convention on Diplomatic Relations’ (1969) 37 International
Conciliation 5 and Eileen Young, ‘The Development of the Law of Diplomatic Relations’ (1964) 40
British Yearbook of International Law 180.

On the Road to Vienna: The Role of the International Law Commission in the Codification of Diplomatic
Privileges and Immunities, 1949–1958. Kai Bruns. © Kai Bruns, 2017. Published 2017 by Oxford
University Press.
 5

On the Road to Vienna 55

a later article also observed that the subject matter was ‘less contentious’.3 Shortly
before the Vienna Conference, the first and second Law of the Sea Conferences
were held in 1958 and 1960, respectively. Their extensive agendas and particu-
larly the territorial aspects involved made them a bone of contention in contrast
to which the codification of diplomatic privileges and immunities seemed an
easy topic to reach agreement on. Also, in comparison to the first codification
of diplomatic precedence at the 1815 Congress of Vienna, Richard Langhorne
and Modesto Vázquez stressed that the Vienna Conference included many smaller
States in the negotiations which made a later, universal acceptance of the conven-
tion much more likely.4
One factor, however, equally stressed by most of the aforementioned authors is
the admiration for the preparatory work rendered by conference officials and the
ILC. The ‘admirable’ work of the ILC is reflected in the quality of the forty-​five
draft articles on the basis of which delegates at the Vienna Conference started its
discussions. The 1958 ILC draft was already a well-​balanced and realistic com-
promise text on a number of Cold War issues.5 Protecting these compromises, the
Soviet Union and UK delegation in particular never became tired of calling on ‘the
wisdom of the International Law Commission’ to make sure that as few as possible
of the roughly 350 amendments would alter the content of the draft articles.6 In
her epic commentary on the VCDR, Eileen Denza confirms that both members
of the ILC and conference delegates never lost sight to find solutions acceptable to
governments and national parliaments. This included the fine balance that mem-
bers of the ILC struck between the scope of topics, form of codification, and ele-
ments of progressive development of diplomatic law.7
This chapter analyses the role of the ILC in the codification process of diplo-
matic privileges and immunities.8 It gives insight into the nature and composition
of the ILC and shows how these aspects affected the drafting process. In so doing
it seeks to clarify the influence of the preparatory process on the final 1958 ILC
draft articles. Additionally, light is shed on discussions that took place in the ILC
between 1949 and 1958. Some of these discussions form a substantial basis for a
profound understanding of why the Vienna Convention takes the form it does
today, and of the topics that have been subject to intense debate at the United
Nations Conference on Diplomatic Intercourse and Immunities, better known
today as the 1961 Vienna Conference.

3 Ernest Kerley, ‘Some Aspects of the Vienna Conference on Diplomatic Intercourse and
Immunities’ (1962) 56:1 AJIL 128.
4 Richard Langhorne, ‘The Regulation of Diplomatic Practice:  The Beginnings to the Vienna
Convention on Diplomatic Relations, 1961’ (1992) 18 Review of International Studies 17.
5  ILC Yearbook 1958 vol II, 89–​105.
6  Karl Zemanek, ‘Die Wiener Diplomatische Konferenz 1961’ (1961) 9 Archiv des Völkerrechts 398.
7  Denza (n 1) 2.
8  This chapter is partly an adapted version of a chapter on the codification of international law
in Kai Bruns, A Cornerstone of Modern Diplomacy—​Britain and the Negotiation of the 1961 Vienna
Convention on Diplomatic Relations (Bloomsbury, London 2014).
56

56 On the Road to Vienna

1.  Evolution of the Institutionalized Codification Process

Before looking at the negotiations directly relevant to the drafting of the Vienna
Convention, it is beneficial to understand the historical evolution of the institu-
tionalized codification process that has shaped the codification of international
law under the auspices of the UN. After the First World War codification of
international law became institutionalized by the League of Nations.9 However,
its efforts were not altogether successful and, eventually, halted. One reason was
that the preparatory process under the League of Nations had failed to prod-
uce a balanced draft convention for the first codification conference, The Hague
Codification Conference in 1930.10 Until the First World War codification was
mostly in the hands of international jurists or private international organizations
such as Johann Caspar Bluntschli or the Institute of International Law.11 With the
end of the First World War and the establishment of the League of Nations the
codification of international law became organized on an intergovernmental level.
In so doing, the League of Nations instructed a Committee of Experts to prepare a
provisional list of the subjects on international law of which codification, by inter-
national agreement, would seem to be most desirable and realizable. The basis for
this evaluation was a detailed questionnaire on matters drawn from a provisional
list of subjects which were determined in sub-​committees, typically staffed with
one rapporteur and assisted by another international jurist. However, there was
little communication between the Committee members and governments and the
feedback on the questionnaires was of limited value for a balanced codification
since the responses were kept general and did not include specific information on
detailed practices.12 The reason for this absence of ‘diplomatic spadework’13 was
partly that, at that time, international law did not occupy ‘any significant place in
the normal diplomatic exchange between states’.14 But also because governments
were not particularly motivated to reveal their diplomatic practices. As a result, the
1930 Hague Codification Conference negotiated three selected subjects (national-
ity, territorial waters, and the responsibility of States for damage caused in their ter-
ritory to the person or property of foreigners), resulting in a set of drafts which only
reflected the views of individual experts, but did not constitute a politically and
systematic draft. The basis for discussion lacked the precision necessary to reach
a satisfactory agreement and eventually the ‘remoteness of the preparatory work
from the realities of the international situations’15 led to the practical failure of the
first international conference convened for the codification of international law.

9  Shabtai Rosenne (ed), League of Nations Committee of Experts for the Progressive Codification of
International Law (1925–19​28) (Oceana Publications, New York 1972).
10  Hunter Miller, ‘The Hague Codification Conference’ (1930) 4 AJIL 674.
11  Langhorne (n 4) 3f. See also Young (n 2) 171.
12  Shabtai Rosenne, ‘Relations between Governments and the International Law Commission’ The
Year Book of World Affairs (1965) 188–​98, 190.
13 ibid 189. 14 ibid 184. 15 ibid 185.
 57

Evolution of the Institutionalized Codification Process 57

After the Second World War, the successor organization of the League of
Nations, the United Nations, included the initiation of studies on the codification
and progressive development of international law in Article 13 of its Charter. This
made the study of international law an integral part of the work of the United
Nations which delegated this task to the newly founded ILC. However, in the
early years of the ILC many questions regarding its work and working procedure
still stood open. The experience of the failure of the 1930 The Hague Codification
Conference led to divergent interpretations of what the future work of codification
should look like. And so, in the late 1940s, it was not yet clear how the UN should
comply with its obligations under Article 13 of the Charter. In 1947, the Institut
de Droit International, one of the most influential private institutions on the study
of international law, estimated that the most significant contribution to the codifi-
cation of international law was to perform systematic research, on the national and
international level, to correctly calculate the current state of affairs.16 This view was
supported by British international jurists and particularly by the then president of
the renowned Grotius Society, Sir Cecil Hurst, who pleaded for the codification of
international law on new lines.
Through his work as former Foreign Office legal adviser as well as judge and
president of the Permanent Court of International Justice, Sir Cecil had become
an expert in legal inter-​war issues and realized that there were still many points
in international law on which no universal acceptance existed or where no inter-
national practices had yet developed.17 The strict sense of codification was to ascer-
tain and define the limitations of international law, declaring the existing rules
of international law but not formulating how rules of international law ought to
be (as it had been the practice in the past under the guidance of the League of
Nations). However, the latter was, according to Hurst, the automatic consequence
of codification by international conferences in which national needs were too often
neglected. This was, for Hurst, the misfortune that contributed to the failure of
the 1930 The Hague Conference. Regarding the practice under the League of
Nations, Hurst pointed out that the work was too vast for one man and that the
task could not be done on an individualistic basis.18 Moreover, some States criti-
cized rather the remoteness of the preparatory documents in relation to diplomatic
practice than the opposing national interests during the final diplomatic stage of
the 1930 codification attempt. Powerful political support for a greater influence of
governments on the codification process came, inter alia, from the Soviet Union

16  Furthermore, the resolution of the Institute of International Law, adopted at the 1947 Lausanne
meeting, warned against codifying international law as intended by the 1930 Hague Codification
Conference, but recommended gathering systematic information on the current state of accepted rules
of international law, creating a doctrinal base from which gaps in international law could be filled.
Institut de Droit International, La codification du droit international (12 August 1947) <http://​www.
idi-​iil.org/​idiF/​resolutionsF/​1947_​lau_​02_​fr.pdf> accessed 28 September 2016. See also Cecil Hurst,
‘A Plea for the Codification of International Law on New Lines: Transactions of the Grotius Society’,
Problems of Public and Private International Law, Transactions for the Year 1946 (1946) 32 British
Institute of International and Comparative Law 135.
17  Hurst (n 16) 135. 18 ibid 148.
58

58 On the Road to Vienna

which had a justified interest in avoiding the production of drafts at the prepara-
tory stage which would have been too theoretical. As a result, preparations were to
be conducted within an institutional framework which would allow for in-​depth
involvement of governments.19
It was in this light that the Statute of the ILC was drawn up in 1947 providing
for a preparatory codification process in which calm scientific research and govern-
mental involvement went hand in hand.20 The United Nations General Assembly
adopted at its 123 plenary meeting Resolution 174 (II), establishing the ILC on 21
November 1947.21 The idea behind the UN effort was to refashion the traditional
notion of international custom through codification which sought to make the law
more efficient to support the very conceptive idea of the UN itself; the mainten-
ance of international peace and security.22 As a result, the ILC was instructed to
discover the real needs of the international community in the field of ‘codification
and progressive development of international law’.23 In doing so, the Statute of the
ILC drew on past experience and included some provisions which strengthened
mutual relations between the ILC and governments. The Statute gives a precise
role to each of these actors, providing for a routine procedure in the codification
process. Consequently, it became usual procedure that during a first preparatory
phase research is organized by the ILC as an independent group of experts which
prepares a set of non-​binding draft articles. The preparatory phase concludes with
a recommendation of the ILC to the United Nations General Assembly (UNGA)
for the appropriate form of codification. During the second, diplomatic, phase
every member State has the possibility to participate directly in the negotiations,
often (but not exclusively) taking the form of an international conference of
plenipotentiaries.

2.  Diplomatic Intercourse and Immunities: A Priority Topic

When the ILC took up its work in 1949, the topic of diplomatic immunities
was shortlisted in a survey of the Secretariat of the UN. However, unlike the top-
ics on the law of treaties, arbitral procedure, and the regime of the high sea, no
priority status was initially accorded to diplomatic immunities.24 In preparation

19  Shabtai Rosenne, ‘The International Law Commission, 1949–​1959’ (1961) 37 British Yearbook
of International Law 186.
20  Shabtai Rosenne, ‘Codification Revisited after 50 Years’ (1961) 2 Max Planck United Nations
Yearbook 1.
21  Jeffrey Morton, The International Law Commission of the United Nations (Columbia: University
of South Carolina Press 2000) 6.
22  Shabtai Rosenne, ‘The Role of the International Law Commission’ (1970) 64 AJIL 26.
23  ‘Codification and progressive development’ of international law is the quantum leap by which
it is intended to strike a balance between the need for improvement of international law (progressive
development) and the need for stability (codification).
24  For an excellent account on the priority-​status debate see Richard Langhorne (n 4) 13–​15, and
Yuen-​Li Liang, ‘Diplomatic Intercourse and Immunities as a Subject for Codification’ (1953) 47
AJIL 439.
 59

Diplomatic Intercourse and Immunities: A Priority Topic 59

for the first session of the ILC in June 1949, a number of studies were published
by the Secretariat, inter alia, for a draft declaration of the rights and duties of
States, a survey of the question of international criminal jurisdiction, and a survey
on international law in relation to the codification work of the ILC. The latter
study included twenty-​five topics in the field of ‘international law of peace’ of
which the members selected, within only six meetings, a preliminary list of four-
teen topics becoming the Commission’s first long-​term working plan.25 While the
Commission had only needed six meetings to agree on the topics included in
this working plan, identifying the ones which should enjoy priority status became
more difficult. One suggestion favoured the regime of the high seas, statelessness,
and consular intercourse and immunities.26 Another strategy aimed to prioritize
the law of treaties and arbitral procedure. A third one focused on the question of
nationality and statelessness. A further one stressed the importance of the codifica-
tion of the right of asylum. While the last two proposals did not find the necessary
support to be pushed forward, the ILC, eventually, decided to prioritize the three
topics of law of treaties, arbitral procedure, and the regime of the high seas.27
The increasing Cold War confrontations during the 1950s, however, deterred
enhanced relations between States. The international pressure particularly bur-
dened relations between States of East and West, and violations of diplomatic
immunities became more frequent and increasingly serious. It was often in these
situations that less powerful States sought the protection of international law and,
in this particular case, it was the former Republic of Yugoslavia, which had fallen
out with the Soviet Union, and had placed a draft resolution on the agenda of
the seventh UNGA session in 1952, requesting priority be given to the codifica-
tion of ‘diplomatic intercourse and immunities’.28 In the meetings of the Sixth
Committee of the UN, Yugoslavia accused the governments of the Soviet Union,
Poland, Czechoslovakia, Hungary, Bulgaria, Romania, and Albania of diplomatic
discrimination. Yugoslavian agents had been the subject of physical attacks as
well as restriction of fundamental diplomatic rights such as the freedom of move-
ment, the inviolability of mission premises, and the freedom of communication.29

25  The twenty-​five topics shortlisted in the survey can be found in the ILC report to the General
Assembly. With the preliminary list of fourteen topics the ILC decided, from the outset, against the
establishment of a general and systematic codification plan for the entire field of international law, as
originally envisaged in the preamble and article 1 of the Charter of the United Nations. ILC Yearbook
1949, 280–​81.
26  The last topic was raised by ILC member Vladimir Koretsky of the Soviet Union. He stressed
that questions on consular relations arose very often in current State practice and that this field was
‘strewn with obstacles, as practice differed in various countries, thus leading to frequent misunder-
standings between the states’. However, other topics seemed more urgent, which explains why consu-
lar intercourse received only three out of nine votes in the final vote. ibid 58.
27 ibid 283.
28  See Richard Langhorne for an explanation on how the Cold War situation had positive effects
on the codification process of diplomatic relations and that it was particularly the USA that gave the
codification process additional momentum. Langhorne (n 4) 3–​17.
29  The alleged flagrant violations of privileges and immunities included: discourtesy, maltreatment
and physical attacks, arrest, restriction of travel, denial of medical aid and various services, refusal of
exit visas, illegal entry into the embassies and legations, censorship, and refusal of permission to receive
mail, and newspapers. UNGA, ‘Legal Questions’ (1952) UNYB 801.
60

60 On the Road to Vienna

Therefore, Yugoslavia argued that an early codification of ‘diplomatic intercourse
and immunities’ would have a positive effect on the application of respect for
traditional rules of diplomacy. It would mobilize world public opinion against
‘aggressive machinations’ and, as a consequence would relieve world tension.30
The US representative supported the idea stressing the importance of codification
as US citizens and diplomats, too, were suffering discrimination by Cominform
regimes.31 The Soviet representative, of course, denied these charges of violation
of diplomatic immunities and was opposed to the Yugoslavian draft resolution.
He was supported by the Polish delegate who interpreted the claims as being not
of a legal character, explaining that the issue had been ‘artificially created’ by the
United States and Yugoslavia as a ‘propaganda manoeuvre’.32
Meanwhile, discussions on the codification of ‘diplomatic intercourse and
immunities’ had already borne strong results in the Sixth Committee of UNGA.
In the light of recent violations of diplomatic custom, most members of the
Committee regarded the topic as sufficiently important to be considered by the
ILC. It was proposed to include matters such as personal privileges and immuni-
ties, diplomatic asylum, protection of premises and archives as well as the start
and ending of the appointment of diplomatic staff in the codification project.33
Indeed, the Yugoslavian and the US representative had made an impression, warn-
ing that such violations of diplomatic immunities infringed the UN Charter and
threatened the maintenance of peace. However, there was another practical reason
to treat the question of diplomatic privileges with priority. It was in the early 1950s
that international organizations increasingly sought immunities and privileges for
their members of staff, and there was a widespread desire to circumscribe this
process.34 Representatives in the Sixth Committee feared that the elasticity of cus-
tomary law could be challenged and it was argued that certain privileges, such as
juridical immunity, should be reserved only to diplomatic agents.35
Despite the overall agreement to lift diplomatic ‘intercourse and immunities’
to the status of a priority topic, some representatives wanted to further broaden
the Yugoslavian draft resolution. The Lebanese and Columbian representa-
tives suggested including the question of consular relations in the resolution as
well.36 Another proposal, made by Colombia and supported by many other Latin
American States, wanted to add diplomatic asylum to the topic of diplomatic

30  Liang (n 24) 442.

31  He referred to a Soviet decree that converted 80% of the country into a forbidden zone, includ-
ing capital cities such as Kiev and Minsk. Additionally, there was a Secrets Act in 1947 that had
restricted all forms of communication between Soviet citizens and foreign diplomats. ibid.
32 UNGA ‘Question of the Codification of Diplomatic Intercourse and Immunities’ (1952)
UNYB 802.
33  Memorandum of the Secretariat on the Codification of Diplomatic Intercourse and Immunities,
ibid 131.
34  Liang (n 24) 443. State relations with international organizations were later regulated separately
by the CRSIO which, however, is still missing the necessary number of ratifications in order to come
into force.
35  Diplomatic agents understood in the traditional sense as representatives of States.
36  UNGA (n 29) 802.
 61

Diplomatic Intercourse and Immunities: A Priority Topic 61

intercourse and immunities, as these themes would be closely related.37 But none
of these suggestions gathered the necessary majority. Under the precondition that
the work of the ILC would not be disturbed, and that it was granted the necessary
freedom to decide when to start to work on the subject, the representatives of, inter
alia, Australia, Bolivia, Brazil, Taiwan, France, Greece, the UK, and the US, agreed
to support an amended version of the Yugoslavian draft resolution.38 Finally, the
revised draft resolution was adopted in the Sixth Committee by forty-​two votes
to five, with four abstentions and passed the Assembly without discussion.39 As a
result, resolution 685 (VII) urged the ILC to treat the codification of diplomatic
intercourse as a priority topic, starting with its research ‘as soon as it considered it
possible’.40
Half a year later when the ILC held its 1953 annual session, it was not feas-
ible to deal with the subject of diplomatic intercourse and immunities due to an
overloaded working schedule, unfortunate timing, and some procedural problems.
Because of the absence, caused by illness, of one of the special rapporteurs and
other procedural problems with the preparations for the meetings, members of the
ILC had difficulties deciding on a suitable working order.41 Furthermore, the ILC
was overburdened with work, having scheduled seven different topics, including
‘diplomatic intercourse and immunities’, for this session.42 This heavy agenda, to
be realized within such a short time, required its members to concentrate on a
few topics rather than giving superficial attention to all of them. Thus, the ILC
was at pains not to load even more work onto their annual agenda. Furthermore,
members’ terms were due to end the following year, and they felt the need to com-
plete at least some of their work. The upcoming ILC elections left its members
uncertain of re-​election which would enable them to continue their work. This
uncertainty led the Commission to conclude that it would be inappropriate for
the then present members, in their last year of term, to elect a special rapporteur as
no-​one could be sure if he would be re-​elected for another term.43 Therefore, the
appointment of a special rapporteur on ‘diplomatic intercourse and immunities’
was postponed until the next session, in 1954.
After some difficulties finding a suitable candidate, the Commission appointed
Emil Sandström of Sweden Special Rapporteur on the topic of diplomatic inter-
course and immunities during its 1954 annual session. The sixth session of the
ILC was held at the headquarters of UNESCO in Paris from 3 June to 28 July

37 ibid.
38  Despite the fact that not all delegations were satisfied with such a loose formula; Argentina,
shortly before its adoption, introduced an amendment to delete this phrase. See ibid et seq.
39  ibid 802–​03. 40  See UNGA Res 685 (VII) (5 December 1952).
41  The Secretariat had failed to produce crucial French translations and, furthermore, had not sup-
plied ILC members with some other important preparatory documents. ILC Yearbook 1953 vol I, 4.
42  These topics were: nationality/​statelessness, arbitral procedure, regime of the high seas, law of
treaties, draft code of offences against the peace and security of mankind, regime of the territorial sea
and, finally, the question of diplomatic intercourse referred to the Commission by virtue of UNGA
Resolution 685 (VII) of 1952.
43  ILC Yearbook 1953 vol I, 366.
62

62 On the Road to Vienna

1954. For two out of the nine members, it was their first session after their elec-
tion into the ILC in late 1953.44 Although diplomatic intercourse and immuni-
ties was only the fifth topic on the provisional list for this session, ILC member
Hersch Lauterpacht of Great Britain suggested placing that topic together with
the study on state responsibility on the Commission’s priority list for the next,
seventh session of the ILC in 1955. Furthermore, Lauterpacht initially proposed
Jaroslav Zourek of Czechoslovakia to be appointed Special Rapporteur. However,
when, ten days later, it came to the election of the Special Rapporteur for the topic
of ‘diplomatic intercourse and immunities’ Zourek declined the proposal, owing
to a lack of time.45 The Commission had then to appoint another rapporteur.
Lauterpacht now suggested the chair of the current ILC session, Emil Sandström
of Sweden, to be Special Rapporteur on that topic. Lauterpacht was seconded by
other members and, as a result, his proposal was adopted unanimously.46
Sandström was one of the original members of the ILC and had previously
functioned as Special Rapporteur on the question of international criminal juris-
diction. From 1950 onwards he was a member of the Institut de Droit International
and reflected the ideals of the first hour: international legal expertise of highest
rank but not directly affiliated with any government. Being responsible for the set-
ting up of the first report on diplomatic intercourse, Sandström’s initial draft was
important for the scope of the future convention as it bore an apolitical signature.
His report on the original twenty-​eight draft articles concentrated on legal aspects
but did not draw on Cold War topics. As will be seen, these were only later added
thanks to discussions during the ILC sessions in 1957 and 1958. Additionally,
Sandström kept the focus on diplomatic intercourse and immunities, excluding
deliberately consular relations and immunities of agents of international organiza-
tions, both of which he considered a separate topic. Finally, in his report, he started
the tradition of keeping discussions on doctrines of diplomatic immunity in a
commentary, separate from the articles themselves. Doing so met particularly with
Soviet agreement, and helped to focus on practical problems, however, sometimes
at the cost of coherence of applied doctrines.47
Although Sandström was able to draft a first report on the subject of ‘diplo-
matic intercourse and immunities’ within a year’s time, the Commission neither
in 1955 nor in 1956 found time to discuss the issue as it was busy preparing
the drafts for the Law of the Sea conventions.48 However, members were pro-
vided with background information via the report of the Special Rapporteur and
a memorandum prepared by the Secretariat which outlined current principles and

44  Fluctuation of membership, though, was not too high. While Jesús Yepes of Colombia, Ricardo
Alfaro of Panama, Feodor Kozhevnikov of the Soviet Union, and Manley Hudson of the USA left
the ILC, Francisco García Amador of Cuba and Carlos Salamanca Figueroa of Bolivia joined the
Commission. Another vacancy was caused by the resignation of John Parker of the USA shortly after
his election in 1955; he was later replaced by Douglas Edmonds of the USA.
45  ILC Yearbook 1954 vol I, 193. 46 ibid.
47  See Tunkin’s comment on the Commission’s main purpose being the achievement of practical
results. ILC Yearbook 1957 vol I, 5.
48  ibid vol II, 132.
 63

The Ninth Session of the ILC in 1957 63

practices followed by States.49 The memorandum was not only a restatement of

the status quo of prevailing rules but also observed divergences in practice, such
as those regarding the limits of immunity in private law, categories of diplomatic
staff entitled to full diplomatic immunity, immunities of subordinate staff, the
extent of immunity from taxation, and conditions for the waiver of immunity.
Furthermore, the memorandum reviewed various attempts which were made in
the past to codify the subject. These included the first international convention on
diplomatic relations, namely the 1815 Règlement de Vienne (Congress of Vienna); a
regional codification of diplomatic relations, namely the 1928 Havana Convention
on Diplomatic Officers,50 and an in-​depth piece of research conducted by the pres-
tigious Harvard University on diplomatic privileges and immunities, the 1932
Harvard Research Draft.51

3.  The Ninth Session of the International Law Commission

in 1957

Diplomatic intercourse and immunities was point 6 of the agenda for the 1957 ses-
sion of the ILC and the subject of discussion during thirty-​nine meetings between
the 383rd to 413th as well as the 423rd to 429th meeting.52 The twenty-​one ILC
members considered, under the guidance of Chairman Zourek, the topic on the
basis of the report and draft articles supplied by Special Rapporteur Sandström
and the memorandum prepared by the UN Secretariat. Sandström’s draft report
on diplomatic intercourse and immunities originally contained only twenty-​eight
articles but expanded during the ILC discussions to thirty-​seven draft articles.53
Cold War issues influenced the discussions and sometimes gave reason for the
inclusion of some particular articles in the draft. It was noticeable that although
ILC member Grigory Tunkin of the Soviet Union, as well as his British colleague
Fitzmaurice, sat in the Commission in their personal capacity they were well aware
of national diplomatic practices and peculiarities of Cold War diplomacy between

49  ibid vol I, 272.

50  The Havana Convention was limited in its scope, although, unlike the European efforts under
the auspices of the League of Nations, the draft articles made it to codification stage, resulting in a
regional convention in 1928. Nevertheless, the convention came into force only between four Latin
American States. Obviously, the authors of the Havana Convention had foreseen the limited impact
of the convention as they admitted that ‘it was intended as a provisional instrument until something
more complete could be achieved’. Grant McClanahan, Diplomatic Immunity:  Principles, Practices,
Problems (St Martin’s Press, New York 1989) 41.
51  The Harvard Research Draft Convention on Diplomatic Privileges and Immunities was pub-
lished in 1932. Regarding its content, the Harvard draft was ‘a big step forward’ and had ‘great persua-
sive authority’. However, although coming from an American university of highest prestige, the text
did not lead to legislation because it lacked authority to influence changes in State practice where the
provisions of the draft code differed.
52  See also Bruns (n 8) 28–​33.
53  For an overview on how the draft had changed, see Bruns (n 8), Appendix.
64

64 On the Road to Vienna

East and West.54 As a result, provisions such as that on the facilitation of accom-
modation and particularly that regarding the freedom of movement, made their
way into the first set of provisional draft articles in a form which would not have
been necessary before the start of the Cold War. Not least because of the technical
nature and reciprocity of diplomatic relations, members were able to go beyond
these arguments until they reached a common principle on which a compromise
text could be adopted which was acceptable for both sides. However, there were
also many points on which Tunkin and Fitzmaurice agreed and on which they,
together, convinced other members of their position. This was the case, for example,
during the debate on the inviolability of the diplomatic mission in respect of the
regionally practiced custom of conceding diplomatic asylum on mission premises.
While Tunkin and Fitzmaurice had led the Commission to reject the inclusion of
such a provision, the issue was diplomatic reality particularly in Latin American
countries which could not be ignored. The Commission as a whole became aware
that an endless debate on diplomatic asylum could only be avoided if diplomatic
missions were granted absolute inviolability. This way, the final conventional text
offered a loophole which would help to avoid future discussions on the inclusion
of diplomatic asylum. Hence, the fear of opening up Pandora’s box was greater
than the wish to eliminate any form of misuse of this principle and eventually led
to the absolute principle of the inviolability of mission premises.
During the 400th meeting, after more than three weeks’ work, the Commission
discussed a point raised by Jean Spiropoulos of Greece; namely the final form of
the draft articles. Such a decision was not unimportant and affected the method
of work, particularly for the discussion of diplomatic privileges and immunities. It
was rather unlikely once the Commission had decided to formulate a model code,
it being not much more than a restatement of the current law that the Commission
would go beyond recognized international law in force. However, should it be
decided to envisage a codification by convention, which had binding power on the
UN member States, the Commission might also attempt to ‘codify a practice which
had not yet become law, but which was general enough to warrant the reasonable
expectation that the text proposed […] would be accepted by Governments’.55
In general, most members had aimed from the beginning for codification by
convention. Special Rapporteur Sandström acknowledged that he had assumed
the final drafts would form the basis of a draft convention.56 By the 400th meeting
half of the set of draft articles had already been discussed with the understand-
ing that they would be recommended for codification in a convention and, de
facto, the Commission had no choice but to continue as it had begun. The Greek
ILC Member Spiropoulos pointed out that the Commission remained positive
about the suitability of the topic for codification, and ‘could not change horses
in mid-​stream’.57 Furthermore, ILC member Zourek noticed that uniformity of

54 Fitzmaurice was the legal adviser of the British Foreign Office. Tunkin headed the Legal
Department of the Foreign Ministry of the Soviet Union.
55  ILC Yearbook 1957 vol I, 88. 56 ibid. 57 ibid.
 65

The Tenth Session of the ILC in 1958 65

State practice could only be achieved by a convention, while others stressed that
diplomatic intercourse displayed ‘a fair measure of agreement’ and expressed high
hopes by suggesting that it had the best chance of all topics of achieving a success-
ful codification.58
By contrast, Fitzmaurice was not so optimistic and doubted whether a draft con-
vention was the most desirable form. Having in mind the two options open to the
UNGA to proceed with codification by convention (ie either through the General
Assembly or through the convening of a diplomatic conference) Fitzmaurice was
sceptical. He did not expect UNGA to convene a special conference on diplo-
matic intercourse alone, as it had done with the Law of the Sea, and pointed to
the dangers that codification within the scope of the General Assembly would
imply. He expected the General Assembly to open up discussions on the drafts
again, but with far less time for careful study, increasing the likelihood that any
change introduced ‘might not be for the better’.59 On top of this, there was also
the problem of ratification and reservations. One could not know yet how many
States would ratify a possible convention, nor the extent of reservations these States
would introduce to it. Therefore, Fitzmaurice was not sure if a convention would
necessarily be more advantageous than a model code. He suggested the deferment
of a final decision until the next ILC session, awaiting the nature of governmen-
tal comments. However, despite his warnings the Commission as a whole could
not agree entirely. Having in mind both that half of the draft articles would need
reconsideration60 if they were to fit the form of a restatement to a model code only,
and also the real chances of a successful codification in form of a convention, the
Commission felt urged to show its preferential attitude towards codification. In
order to indicate to governments which final form the Commission was aiming
for, it provisionally decided in favour of codification by convention and it was on
that basis that it proceeded with its considerations of the remaining articles.

4.  The Tenth Session of the International Law Commission

in 1958

For several reasons the tenth session of the ILC in 1958 was an important step-
ping stone for the codification process of diplomatic privileges and immunities.
First, the ILC had received comments by nineteen States,61 and subsequently was
to review the articles in the light of these commentaries. Second, the ILC had to
take a final decision on its recommendation to the General Assembly regarding the

58 ibid. 59 ibid.
60  The recommendation for a model code would have impeded the formulation of provisions that
differed from recognized rules of international law or which introduced a means of implementation
such as the new draft article on the settlement of disputes.
61 Argentina, Australia, Belgium, Cambodia, Chile, Czechoslovakia, Denmark, Japan, Jordan,
Luxembourg, the Netherlands, Pakistan, Sweden, Switzerland, Taiwan, Union of Soviet Socialist
Republics, United Kingdom, United States of America, and Yugoslavia.
6

66 On the Road to Vienna

form and eventual purpose of the draft articles. The feedback received on the draft
articles as a whole was generally favourable. Many governments agreed to the scope
of the presented draft and the UK Government even expressed its appreciation
for the ‘painstaking study’62 rendered by the Commission. Particularly interesting
were the comments of the USA and Chile. The latter noted that the 1957 ILC
draft fundamentally met with the provisions of the Havana Convention of 1928.63
This comment was important for the Commission as it stood in contrast to the
criticism received in the Sixth Committee where it had been said that the draft
did not sufficiently take into account the provisions of the Havana Convention
and, hence, the regional practices of Latin American countries.64 In fact, the only
important principle that was not covered by the ILC draft but practiced in South
America was that of diplomatic asylum. This practice was related to the fiercely
debated principle of absolute inviolability of mission premises and was dropped
for tactical reasons.65
In terms of the final form of the draft convention, it is worth noting that neither
the USA nor Britain in 1958 supported codification through a legally binding con-
vention. In its observations on the first set of provisional drafts the USA supported
codification in form of a restatement of existing principles of international law. In
contrast to the other twenty government comments, the US government was the
only one that plainly excluded a possible codification by convention. The reason
was that it felt that friction could arise between States due to a number of vague
and ambiguous provisions whose language was ‘obscure in meaning and susceptible
of different interpretations’.66 This is particularly interesting bearing in mind the
initial debates in the Sixth Committee in 1952 about diplomatic intercourse and
immunities becoming a priority topic for codification, in which the USA actively
supported the Yugoslavian representative in its endeavour to press for codifica-
tion. But Britain also had its doubts. ILC member Fitzmaurice was convinced
that a non-​binding form of codification was the most advisable and practical solu-
tion. Thus, he lobbied for the recommendation of a resolution on the drafts of
diplomatic intercourse and immunities. He feared that time restraints, potential
changes suggested at such a conference, and subsequent reservations could compli-
cate codification. Therefore, he favoured a model code which would remain as the
ILC had negotiated it—​although non-​binding in its legal character.67
At the end of the tenth session, at its 467th meeting, the Committee resumed
discussions on the final form of the ILC drafts. Although some time had passed,
the general attitude of members regarding their inclination towards codification
by convention had not changed. Special Rapporteur Sandström suggested inviting
the General Assembly either to recommend the drafts to Member States with the

62  ILC Yearbook 1958 vol II, 132.

63  The 1928 Havana Convention codified regional diplomatic practices as they were found pri-
marily in Latin American States. Its regional focus was one of its major shortcomings and impeded a
more wide-​reaching application.
64  ILC Yearbook 1958 vol II, 114–​15, and 132. 65  ibid vol I, 84.
66  ibid vol II, 133. 67  ILC Yearbook 1957 vol I, 88.
 67

The Tenth Session of the ILC in 1958 67

view of concluding a convention or to convoke a conference to conclude a con-

vention.68 Such a procedure would be in accordance with Article 23(c) or (d) of
the Statute of the ILC.69 However, Fitzmaurice, still trying to avoid codification by
convention, criticized the idea that all ILC drafts should be recommended to the
General Assembly as codification in form of a convention. Comparing diplomatic
intercourse and immunities with consular affairs, he stressed that there was not
much customary international law on the latter which might make codification by
an international conference desirable.70 However, the draft articles, according to
Fitzmaurice, had broken no new ground, nor was there ‘any obscurity’71 (as was
the case with the Law of the Sea) which would justify the convocation of a con-
ference. Therefore, Fitzmaurice suggested that instead of recommending the form
of an internationally binding convention, members of the Commission should be
guided by Article 23(b) of the Statute of the International Law Commission to
recommend that the General Assembly take note of the Commission’s report and
adopt it as a resolution.72
Nevertheless, for the majority of members of the ILC, only recommendations
along the lines of Article 23(c) or (d) (to recommend the draft to Member States
with a view to the conclusion of a convention either through the Sixth Committee
or through a conference of plenipotentiaries), were ever in the running. Zourek
supported the convocation of a separate conference which, in any case, did not
need to be as big as the UN Conference on the Law of the Sea. In contrast, there
was also a need to reduce the number of conferences to a minimum, and, because
the subject of diplomatic intercourse was ‘straightforward’, the General Assembly
could deal with it.73 However, an article by article discussion within the Sixth
Committee was the exception rather than the rule and lately had only been applied
in the codification of Genocide in 1948, as Liang, the Secretary to the Commission,
pointed out.74 In 1958, however, such an endeavour seemed unrealistic since the
General Assembly would not have the necessary time to examine the draft in order
to recommend it to Member States. Consequently, Ahmed Matine-​Daftary of Iran
took up Fitzmaurice’s suggestion that it was not necessary to recommend the con-
vocation of a conference but that the draft convention could be simply opened for
signature by Member States after the General Assembly had adopted it.75 Despite
some debate, this suggestion still did not convince the majority of ILC mem-
bers by the end of the day. Although the final vote was postponed until the next
morning, it did not change the predominant view that the draft articles would be
best formulated in conformity with Article 23(c) of the ILC Statute. Eventually,
the proposal was adopted by vote, and the ILC officially recommended to the
General Assembly that the draft articles on diplomatic intercourse and immunities

68  ILC Yearbook 1958 vol I, 199.

69  Statute of the International Law Commission, UNGA Res 174 (II) (21 November 1947) art
23(c) and (d), and ibid.
70  ILC Yearbook 1958 vol I, 199.
71  See Fitzmaurice’s intervention during the 467th meeting of the tenth ILC session, ibid.
72  ILC Yearbook 1958 vol I, 199. 73 ibid. 74 ibid. 75 ibid 200.
68

68 On the Road to Vienna

‘were to be recommended to Member States with a view to the conclusion of a
convention’.76
A third important aspect of the 1958 session was the decision to abandon the
idea of a simultaneous codification of diplomatic and consular relations. During
the 1957 UNGA session this idea was aired first and was taken up in the follow-
ing ILC session by Jean-​Pierre François of the Netherlands who wondered if the
ILC should submit those two drafts simultaneously to UNGA.77 The main rea-
son for doing so was the close relationship between the two topics as diplomats
often also performed consular tasks. One option discussed was, therefore, that
ILC members could deal with the most important aspects of consular intercourse
and immunities in the current 1958 session in order to adopt a provisional draft
in 1959 together with the ILC’s draft on special missions.78 Despite a certain prox-
imity of the topic organizational aspects weighted heavy on such an endeavour.
As a matter of fact, the agenda of the ILC was set according to the maturity of
topics and not according to the close relationship between two subjects. No set of
draft articles had yet been prepared on consular intercourse and the ILC preferred
to press on with the subjects of arbitral procedure and diplomatic intercourse,
whose preparation was most advanced.79 Consequently, after the start of the 1958
it had become clear that a simultaneous codification of diplomatic and consular
intercourse and immunities could not be achieved without accepting considerable
delays in the codification of the former.
Regarding the content of the drafts on diplomatic intercourse and immuni-
ties, the 1958 ILC session had not brought much change in structure but led to
a considerable increase in the total sum of draft articles. While the 1957 draft
contained thirty-​seven articles, the adopted and final set of draft articles in 1958
comprised forty-​five draft articles. Thus, a new article on the notification of arrival
and departure was added due to the suggestions of the Netherlands and Italy and
another one on non-​discrimination and reciprocity of diplomatic privileges and
immunities emerged out of the discussions. Debates during this session tended
to concern points on which State practice differed. Therefore, a rather contro-
versial debate arose on the ILC draft article on the settlement of disputes by the
ICJ, because the jurisdiction of the Court was not accepted by many States.80
Although it was not clear if an article on the settlement of disputes was indispens-
able for the codification of diplomatic intercourse, and despite the danger that the
Article could deter States from acceding to the Convention, it remained in the ILC
draft—​most likely, thanks to its idealistic value. However, ILC members saw little
prospect that the Article would be adopted by a necessary two-​thirds majority in
the Plenary of the Vienna Conference.81 On the other hand, issues which were
debated but not included in the draft convention included an article on the right
of legation and a provision stating that the establishment of diplomatic relations
implied the establishment of consular functions, both of which were alluded to by

76  ILC Yearbook 1958 vol II, 89. 77  ibid vol I, 3. 78 ibid 4. 79 ibid 4.
80  ibid 184–​87. 81  ibid vol II, commentary on art 45.
 69

Conclusion 69

the Czechoslovakian Government in their comments on the provisional set of draft

articles.82 An additional article on the diplomatic corps, as suggested by the Italian
government, failed because ILC members could not agree on a concrete definition
of it—​as did another article on diplomatic bank accounts, a topic which remained
disputed.83

5. Conclusion

The quality of the draft articles prepared by the ILC was an essential stepping stone
towards a successful codification of diplomatic privileges and immunities. The draft
articles drew part of their authority from a realistic codification of diplomatic prac-
tice and the feedback received from governments. The codification process under
the UN has learnt its lessons from past codification attempts. In contrast to the
prescriptive codification effort pursued under the League of Nations, which relied
mainly on the individual expertise of a few experts, the codification process under
the UN had been institutionalized, allowing for input from both governments and
a variety of legal experts. This way, the ILC managed to balance views early in the
drafting process and successfully downsized the potential for complex and time-​
consuming discussions during conference negotiations. The depths of discussions
that took place during the rather intimate ILC meetings produced a balanced draft
that enhanced the likelihood to secure the needed two-​thirds majority among the
eighty-​one delegations in the Plenary sessions of the Vienna Conference.
Additionally, the ILC functioned as a platform for debates on the final form
and scope of the codification project. Since the first version of Special Rapporteur
Sandström’s draft, the theory of diplomatic immunities was sidelined, and only
topics on which diplomatic practice was universally established and clear were
included. Per definitionem, this excluded issues such as diplomatic asylum, dip-
lomatic bank accounts, or the role of the diplomatic corps. For a short period of
time, the simultaneous codification of diplomatic and consular relations was an
option, however, for procedural reasons this did not prove possible in the end.
There was too little time for the drafts on consular diplomacy to be thoroughly
discussed and commented on by governments. In retrospect, had the ILC rushed
the consular draft through, it is very well possible that the articles would have
encountered a similar fate as those on ad hoc diplomacy which later were returned
by the Vienna Conference for further comments by governments.
Although it was not until 1958 that the ILC took a final decision as to which
form of codification it would recommend to the General Assembly, most ILC
members were convinced from an early stage that a legally binding convention,
as opposed to a model code or resolution as a restatement of current law, was the

82 Comments by Governments on Draft Articles Concerning Diplomatic Intercourse and

Immunities, Czechoslovakia, ibid 117.
83  ibid vol I, 145 and 120 respectively (contributions by Sandström).
70

70 On the Road to Vienna

appropriate form of codification. Such a decision had at least two consequences.
First, despite the ILC’s mission to introduce in its work an element of progressive
development of international law, ILC members stuck to the mandate of UNGA
Resolution 685 of 1952 which required the ILC to restrict its work to the codifi-
cation of diplomatic intercourse and immunities. Second, the decision to recom-
mend codification as a convention collided with the interests of the USA, one of
the original supporters of the Yugoslavian initiative. Similarly, Gerald Fitzmaurice
of Britain intended until late in the 1958 ILC session to dissuade the Commission
to recommend a codification by convention. He was not convinced that a binding
convention was necessary. At best it would involve some form of national legisla-
tion and, most certainly, a bothersome, renewed discussion in parliament about
the merits and dangers of extended diplomatic privileges and immunities.
At the time the drafts on diplomatic immunity were discussed in front of the
ILC, its membership composition had not yet adapted to the influx of African and
Asian UN Member States. ILC members from African and Asian States were few
in comparison to their Western or Latin American counterparts. As a consequence,
during the drafting and the debates of the articles on diplomatic intercourse and
immunities the focus was set on a number of Cold War issues. It might be ques-
tioned whether the provisions on the freedom of movement and the facilitation
of accommodation would have entered the set of draft articles if they had been
discussed at a different point of time and with a different composition of the ILC.
A positive effect, however, was that ILC members found compromise formulas on
Cold War topics on which discussions did not need to be reopened at Vienna. This
created vital support for the ILC draft articles on both sides of the Iron Curtain
which instilled general confidence in the ILC draft.
Another positive side effect was the collaboration between the Soviet member
Grigory Tunkin and Gerald Fitzmaurice of Britain. Both stressed and stood up for
the importance of the absolute inviolability of mission premises. In view of Cold
War-​related incidents that had occurred in diplomatic practice not long before the
ILC debates, this might at first appear surprising. However, for the time being, and
because it seemed the only way to reduce pressure from Latin American govern-
ments to introduce a debate on diplomatic asylum, both cooperated to convince
the ILC to formulate nothing less than a draft article that stipulated the absolute
inviolability of mission premises. The basic idea behind this was that, if the inviol-
ability of mission premises were to remain absolute, this would cover any incident
including those in which people sought diplomatic asylum on mission premises.
This way, the Latin American practice could continue while other delegations did
not have to agree (or discuss) the codification of diplomatic asylum which was a
controversial topic and highly unlikely to pass national legislation, for instance, in
Britain.
The focus on Cold War issues led also to the neglect of matters which were at the
heart of smaller, poorer, and mainly newly independent African and Asian States.
For these States, the codification of diplomatic privileges and immunities meant
a chance to ensure that the balance of reciprocity was maintained and that rights
of the receiving State were strengthened. While the concentration on Cold War
 71

Conclusion 71

issues was certainly a reflection of their political importance and the bi-​polarity
of the international system in the late 1950s and early 1960s, it was also a reflec-
tion of the fact that African and Asian legal systems were under-​represented in the
ILC. Together these two factors led to biased pre-​negotiations during which topics
such as the diplomatic wireless transmitter or the extent of diplomatic privileges
and immunities of administrative staff were not discussed with the necessary fore-
sight. Despite this point of criticism, the ILC addressed most foreseeable problems
before they could reach a magnitude that could not be handled by delegates dur-
ing the scheduled six conference weeks. Eventually, the general quality of the draft
articles laid the foundation for the often cited well-​natured, friendly atmosphere in
which negotiations prospered during the 1961 Vienna Conference.
72
 73

Part III
Personal Immunity
74
 75

6
The Personal Inviolability of Diplomatic
Agents in Emergency Situations
Paul Behrens

1. Introduction

Personal diplomatic inviolability, as enshrined in Article 29 of the Vienna

Convention, imposes obligations on the receiving State, which can best be con-
sidered under two categories. The first of them—​which is at the centre of this
chapter—​relates to the conduct of authorities of the receiving State themselves: it
comprises the negative duty to refrain from arresting or detaining diplomatic
agents, but also the obligation to treat them with respect. The second category
concerns the conduct of third parties. In this regard, the receiving State has the
positive duty of taking measures to prevent attacks on the person, freedom, or dig-
nity of diplomats by such parties.
There is a general perception that obligations under the first category do not,
in fact, experience many violations in contemporary diplomatic relations.1 On
the other hand, situations have arisen in which acts of diplomatic agents made it
particularly difficult for their hosts not to resort to enforcement measures which
would impact on liberty or physical integrity of the relevant persons. This is cer-
tainly the case when a danger to certain interests in the receiving State had been
created by diplomatic personnel.
One of the most famous situations in this context arose in April 1984, in an inci-
dent involving the Libyan ‘People’s Bureau’ in London. Reference has already been
made to the events: when a demonstration had been held outside the Libyan mis-
sion, shots were fired from the Bureau, killing a young Police Constable (Yvonne
Fletcher).2
A similar incident had occurred in Paris in July 1978, when, after a hostage
situation had been resolved at the Iraqi Embassy, gunfire was discharged from that

1  René Värk, ‘Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes’ 8
(2003) Juridica International 110, 111. But see Clifton Wilson, Diplomatic Privileges and Immunities
(University of Arizona Press, Arizona 1967) 62–​77 for a more discerning picture.
2  See Chapter  3 above. On the incident, see also Rosalyn Higgins, ‘The Abuse of Diplomatic
Privileges and Immunities: Recent United Kingdom Experience’ (1985) 79 AJIL 641, 643.

The Personal Inviolability of Diplomatic Agents in Emergency Situations. Paul Behrens. © Paul Behrens,
2017. Published 2017 by Oxford University Press.
76

76 Personal Inviolability of Diplomatic Agents in Emergency Situations

mission, apparently in an attempt to execute the hostage taker. The shots resulted
in the death of one police officer and the wounding of two others.3
Cases which reach such extreme dimensions are, thankfully, not a common
occurrence. But diplomatic history also knows of incidents below that level which
still—​at least in the eyes of the receiving State—​constituted good reason for coer-
cive action. In 1947, for instance, a Secretary at the Brazilian Embassy in Moscow
was restrained ‘to prevent him from damaging the property of a hotel’.4 And in
October 2013, Dmitri Borodin, a Russian diplomat in The Hague, was arrested5
and, according to the Russian Foreign Ministry, beaten in front of his children.6
At the time, it was reported that Borodin’s neighbours had called the police ‘over
concerns children were being maltreated in his flat’—​a claim which the diplomat
denied.7
The reactions of receiving States to dangerous conduct by diplomatic agents
can differ considerably. The French authorities in the 1978 embassy shooting did
not indulge in much hesitation: they returned fire, and a police statement later
confirmed that a member of the embassy security service was killed ‘[d]‌uring the
riposte which the French police were obliged to make’.8 The British government,
after the killing of Fletcher in 1984, contacted the Libyan authorities in an attempt
to find a solution and, when the British proposals were rejected, terminated dip-
lomatic relations, giving the diplomats several days to leave the country.9 In the
Borodin case, the police did at least arrest and detain the diplomat; but soon after
the incident, the Dutch Foreign Minister apologized to the Russian Ambassador
to the Netherlands and admitted that Dutch police had violated the rules of dip-
lomatic immunity.10
These variations reflect the existing uncertainty on the evaluation of diplomatic
inviolability in emergency situations. The VCDR itself offers little guidance on this
point, and even the codification history does not clearly reveal a suitable approach
that should be followed.11
The problem is based on the fact that the VCDR, in spite of the absolute terms
in which inviolability is couched, is not the only instrument of international law

3  Paul Treuthardt, ‘[A lone terrorist …]’, The Associated Press (31 July 1978); Värk (n 1) 117. There
is some uncertainty about the status of the shooters: Värk states that ‘the diplomats started to fire’,
ibid. At the time, it was reported that the shots came from members of the security staff, Treuthardt.
If that had been the case, the shooters would, as service staff, enjoy subject matter immunity only
(VCDR art 37(2)). At the same time, the protection of mission premises clearly falls within the
assigned duties of members of a mission’s security service.
4  Geraldo Eulálio Do Nascimento e Silva, Diplomacy in International Law (AW Sijthoff, Leiden
1972) 93.
5  ‘Dutch Foreign Ministry Prepared to Apologize on Arrest of Russian Diplomat if Necessary’,
Xinhua General News Service (8 October 2013).
6  ‘Dutch Sorry on Russia Diplomat Case’, BBC Online (9 October 2013) <http://​www.bbc.co.uk/​
news/​world-​europe-​24463515>.
7 ibid. 8 Treuthardt (n 3).
9  Foreign Affairs Committee (UK), ‘The Abuse of Diplomatic Immunities and Privileges’ HC
Paper 127 (1984–​85) paras 74–​76.
10  BBC Online (n 6). 11  See text to nn 14–​22 below.
 7

Inroads into Inviolability? Emergencies and Responses 77

which has an impact on situations of this kind. Such incidents regularly involve
other interests which find a basis in international law rivalling that of the VCDR,
and they require the identification of a mechanism which is capable of establishing
a relationship between the competing norms.
This chapter deals with the options at the disposal of receiving States faced with
emergencies caused by diplomatic agents. Following general considerations on
enforcement measures in this context (section 2.1), it investigates possible legal
mechanisms for such measures where interest of the receiving State are affected
(2.2) and where interests of individuals are at stake (2.3). A concluding section
(3)  reflects on the justifications which appear as the most effective grounds for
enforcement measures and highlights their respective advantages and challenges
for States faced with emergency situations of this kind.

2.  Inroads into Inviolability? Emergencies and Responses

2.1 Of need and suitability: Enforcement measures

in emergency situations
Where dangerous situations created by diplomatic agents are discussed in the lit-
erature, there is a tendency to limit the debate to a general prioritization of one
interest over the other, without always providing the legal reason that would allow
for such an understanding. Denza thus speaks of a ‘very limited exception’ to the
prohibition on the arrest of diplomatic agents on the basis of an ‘overriding duty
to protect human life’.12 Sen writes that an envoy who committed an assault on a
person and was himself assaulted in return, could be said to have ‘brought about
the attack on himself by his own conduct and he should not be heard to complain
about violation of his immunity’.13
And yet, the very question whether any inroads into inviolability are permitted,
requires determination.
The codification history appears to suggest that personal inviolability was not
understood as an absolute concept. In its commentary on the relevant draft art-
icle, the ILC noted that the rule of inviolability would not exclude, ‘in exceptional
circumstances’, measures to prevent a diplomatic agent ‘from committing crimes
or offences’,14 and it specifically mentioned the possibility of resorting to measures
of self-​defence.15 At the Vienna Conference, China even suggested bringing this
statement into the substantial text of the Convention, with her delegate asserting
that the principle to which it referred was ‘universally accepted in international

12  Eileen Denza, Diplomatic Law (4th edn, OUP, Oxford 2016) 223.
13  Biswanath Sen, A Diplomat’s Handbook of International Law and Practice (Martinus Nijhoff,
Dordrecht, London 1988) 109.
14  ILC Yearbook 1958 vol II, 97. 15  ibid 97, art 27, commentary, para 1.
78

78 Personal Inviolability of Diplomatic Agents in Emergency Situations

law’.16 The amendment was rejected,17 but the Conference did not engage in a
discussion on the proposal either.
It is illuminating to compare this development with the debates on the inviol-
ability of mission premises (today enshrined in Article 22 VCDR). There, too, an
attempt had been made to limit inviolability: Special Rapporteur Sandström’s draft
would have allowed the receiving State to enter premises under certain circum-
stances in situations of ‘extreme emergency’,18 and at the Vienna Conference, there
had been a proposal to allow that State to take certain measures ‘in exceptional
circumstances of public emergency or danger’.19 But in these instances, express
opposition arose to the suggestions, with some drafters referring to inviolability as
an ‘absolute principle’,20 and others considering the establishment of any limita-
tions as ‘contrary to international law’.21 The relevant proposals were withdrawn.22
That does not necessarily mean that the critics were right in their position. But it
does underline that the acceptance of limitations for personal inviolability was seen
as a much less controversial topic at drafting stage: the strong objections which
dominated the debate on restrictions to premises inviolability were completely
absent where personal inviolability was concerned.
The understanding of personal inviolability as an absolute concept would indeed
encounter significant challenges. The fact that it appears without limitations in the
text of the VCDR does not make competing interests disappear; and in some situ-
ations, that may mean that the concept of inviolability even meets with logical
limitations. If, for instance, a diplomat holds a gun to the head of a fellow diplo-
mat and police officers of the receiving State had a chance to effectively intervene
by taking enforcement action, the borders of inviolability would be quite apparent.
In a situation of that kind, the diplomatic hosts would violate either their negative
duty towards the potential shooter (by adopting coercive measures) or their posi-
tive duty towards the threatened diplomat (by doing nothing). International law
cannot be presumed to force the receiving State to act against international law: it
is clear that, under such circumstances, at the very least the invocation of force
majeure must be at the disposal of the receiving State.23

16  United Nations Conference on Diplomatic Intercourse and Immunities, Vienna 2 March–​14
April 1961, Official Records, Vol I: Summary Records of Plenary Meetings and of Meetings of the Committee
of the Whole, UN Doc A/​CONF 20/​14 (hereinafter ‘Vienna Conference Records Vol 1’) 160, para 79.
17 ibid at 160. The amendment was rejected by twenty-​seven votes to six, with thirty-​four
abstentions.
18  ILC Yearbook 1955 vol II, 11, art 12, and see Diplomatic Intercourse and Immunities, Report sub-
mitted by AEF Sandström, Special Rapporteur, UN Doc A/​CN 4/​91 (21 April 1955) 2, art 12 [English
translation] (hereinafter ‘Sandström Draft’).
19  United Nations Conference on Diplomatic Intercourse and Immunities, Vienna 2 March–​14
April 1961, Official Records, Vol II: Annexes, Final Act, Vienna Convention on Diplomatic Relations,
Optional Protocols, Resolutions, UN Doc A/​CONF 20/​14/​Add 1 (hereinafter ‘Vienna Conference
Records Vol 2’), 24, UN Doc A/​CONF 20/​C 1/​L 163.
20  ILC Yearbook 1957 vol I, 56, para 64 (Amado). See also ibid 54, para 38 (Tunkin).
21  Vienna Conference Records vol 1, 136, para 34 (Daskalov). See also ibid 137, para 37 (Tunkin).
22  ILC Yearbook 1957 vol I, 57, para 2 (Sandström); Vienna Conference Records vol 1, 138, para
9 (Waldron).
23  Force majeure applies when an act not in conformity with an international obligation is the result
of an ‘irresistible force or of an unforeseen event, beyond the control of the State’, which makes it
 79

Inroads into Inviolability? Emergencies and Responses 79

The assessment of the conditions under which measures against diplomats can
be taken, and of the shape they have to assume, causes greater difficulties.
Such measures would certainly include sanctions which the VCDR itself puts
at the disposal of the receiving State. That includes the declaration persona non
grata,24 but also sanctions below that level—​such as warnings issued to the diplo-
matic agent, to his superiors at the mission, and the Foreign Ministry of the send-
ing State. The receiving State is also entitled to sever diplomatic relations with the
sending State altogether.25
In some cases, however, the urgency of the situation created by diplomatic acts
suggests that measures are indicated whose effects are seen immediately. In such
circumstances, the receiving State may well feel that a declaration persona non grata
is an insufficient tool.26
The question, however, whether measures outside those envisaged by the VCDR
can be adopted to deal with emergencies of this kind, is subject to some con-
troversy. In the Tehran Hostages Case, the ICJ expressed a restrictive view in this
regard, suggesting that the rules of diplomatic law constituted a ‘self-​contained
régime’ which already foresaw the possible abuse of privileges and immunities by
the receiving State and specified the methods ‘to counter such abuse’.27
A literal interpretation of that statement may suggest that measures outside the
system of diplomatic law proper are not at the disposal of the receiving State. It
is a position that appears to be reinforced by some of the limitations which inter-
national law places on sanctions that would usually be available when a State is
faced by unlawful acts of organs of another State. With regard to countermeasures,
for instance,28 the ILC’s Draft Articles on State Responsibility make clear that a
State resorting to such sanctions would not be relieved from its duties to respect
diplomatic inviolability.29
And yet, there is evidence that the reference to a ‘self-​contained régime’ does not
mean a return to the theory of the absolute nature of inviolability.
The drafters themselves had certainly envisaged a more generous approach
towards the position of the receiving State. Even Sandström’s original articles on
‘Diplomatic Intercourse and Immunities’ had made reference to the exercise of the

impossible to perform its obligation. ILC Yearbook 2001 vol II Pt 2, 27, art 23(1). It has been accepted
that the cause of force majeure can be human intervention, ibid 76, art 23(1), commentary, para 3.
24  VCDR art 9, and see Case Concerning United States Diplomatic and Consular Staff in Tehran
(United States v Iran) (Judgment) [1980] ICJ Rep 3, para 85 (hereinafter ‘Tehran Hostages Case’).
25  Tehran Hostages Case, para 85. The receiving State would also be able to resort to interpretive
methods to resolve the meeting of competing interests, where this is indicated by the text. The specific
terms and the absolute language employed in VCDR art 29, however, considerably reduces the space
for the application of mechanisms of harmonization (which are discussed in Chapter 16, section 3
below). On the other hand, it is suggested that harmonization plays a certain role where the second
limb of inviolability is concerned: there, the fact that the VCDR refers to ‘appropriate’ steps which
the receiving State has to take to prevent attacks on diplomats, does invite an interpretive effort which
by necessity has to take the value of the affected interests and the threat arising to them into account.
26  See also text to n 35 below. 27  Tehran Hostages Case, para 86.
28  ILC Yearbook 2001 vol II Pt 2, 27, art 22.
29  ILC Yearbook 2001 vol II Pt 2, 30, art 50(2)(b).
80

80 Personal Inviolability of Diplomatic Agents in Emergency Situations

right of self-​defence which personal inviolability was not supposed to impede.30
In the ILC itself, some members went considerably further. Verdross found this
reference ‘insufficient’ and would have allowed a right to coercive action if, for
instance, diplomats were ‘entering prohibited areas or photographing fortifica-
tions’.31 Nor can the fact that the Sandström phrase did not appear in the final
version of the draft articles be seen as supporting the view that only sanctions of
diplomatic law would be at the disposal of the receiving State: the relevant para-
graph was deleted because the ILC agreed that the matter could be dealt with in
its commentary.32
The ICJ itself had not been consistent in its approach towards sanctions at the
disposal of the diplomatic hosts either. Only a few lines after it had called the
measures envisaged by diplomatic law ‘by their nature, entirely efficacious’, the
Court stated that observance of inviolability did ‘not mean that diplomats ‘caught
in the act of committing an assault or other offence’ could not at times be ‘briefly
arrested by the police of the receiving State in order to prevent the commission of
the particular crime’.33
It is indeed questionable whether the restriction of State options to measures
provided in the VCDR would find consensus within the international community.
If that were the case, the receiving State would be barred from enforcement meas-
ures even if, for instance, a diplomat of a hostile power34 were to trigger a powerful
explosive in a military facility—​all it could do would be to declare the perpetrator
persona non grata and give him a ‘reasonable period’ to leave the country;35 and
during such period, not even coercive measures to prevent further attacks by the
same person would be possible. There is hardly evidence that State practice is will-
ing to go to such extremes in the defence of personal inviolability.
There is, on the other hand, evidence that international law recognizes a dis-
tinction between certain emergency situations and other incidents and that it sup-
ports measures which are limited to the conditions of the former scenario. Punitive
measures, which do not respond to an ongoing danger, but seek retribution or the
prevention of a recurrence of the situation in the future, are outside this area. It
is for that reason that countermeasures are a poor basis for restrictions on diplo-
matic inviolability. They presuppose a deliberative effort: the injured State must
make sure that it has fulfilled its obligations under dispute settlement procedures
which exist between the responsible State and itself,36 that the adopted measures

30  Sandström draft (n 18), art 17(2).

31  ILC Yearbook 1957 vol I, 90, para 20 (Verdross).
32  See, in particular, ibid 90, para 22 (Sandström).
33  Tehran Hostages Case, para 86; and see Yinan Bao, When Old Principles Face New Challenges: A
Critical Analysis of the Principle of Diplomatic Inviolability (PhD Thesis, University of Sussex, Sussex
2014) 213, and Matthias Herdegen, ‘The Abuse of Diplomatic Privileges and Countermeasures not
covered by the Vienna Convention on Diplomatic Relations’ (1986) 46 ZaöRV 734, 746.
34  On the possible maintenance of diplomatic relations between States involved in an armed con-
flict, see Denza (n 12) 396.
35  VCDR art 39(2). 36  ILC Yearbook 2001 vol II Pt 2, 30, art 50(2)(a).
 81

Inroads into Inviolability? Emergencies and Responses 81

are ‘commensurate with the injury suffered’,37 and they must call on the respon-
sible State to fulfil its obligations.38 They are, as it were, taken in cold blood.
Emergency measures are a different species altogether. Their acceptance in prin-
ciple is an expression of the recognition that an exceptional situation has arisen
in which the receiving State cannot be expected to fulfil its obligations while the
incident lasts.
And mechanisms have been identified which allow States under these circum-
stances to deviate from duties incumbent on them. It is this concept to which the
ILC made reference when it formulated the ‘circumstances precluding wrongful-
ness’ in its Draft Articles on State Responsibility.39 The invocation of these circum-
stances, which include the situations of self-​defence, necessity, and distress, does
not constitute a permanent reduction of the scope of inviolability. They are rather,
in the ILC’s own words, ‘a justification or excuse for non-​performance while the
circumstance in question subsists’.40
With regard to the type of danger which can emanate from the acts of diplo-
matic agents, it is possible to distinguish two particular fields. The first category is
formed by danger caused to interests of the receiving State itself. The second cat-
egory encompasses danger to private interests—​the interests of individuals under
the jurisdiction of the receiving State. Each category provides its own grounds for
the limitation of diplomatic inviolability and thus deserves consideration in its
own right.
Overlaps do of course exist: necessity in particular is equally well suited to bene­
fit the interests of individuals as well as those of the State; and it thus appears
preferable to discuss this particular ground in its entirety when it first makes its
appearance.41

2.2 Emergency situations threatening interests of the State

2.2.1 State jurisdiction as a basis for enforcement measures
The view expressed by the ICJ that the arrest of diplomatic agents to prevent the
commission of a crime should be possible,42 appears to indicate that in certain
situations the exercise of jurisdiction—​even enforcement jurisdiction—​on the side
of the receiving State would, in spite of the rule of inviolability, still be an option.
It is a view that, in similar form, had already appeared in the ILC debates.43

37  ibid 30, art 51.

38  ibid 30, art 52(1)(a). Depending on the urgency of the situation, the injured State might even
have to notify the responsible State of its decision to take countermeasures, ibid 30, art 52(1)(b) in
conjunction with ibid 30, art 52(2).
39  ibid 27–​28, arts 20–​27. 40  ibid 71, Chapter V, para 2.
41  Similar overlaps relate to some factual aspects: the shooting from the Libyan People’s Bureau in
1984, for instance, affected interests of individuals and interests of the State alike (especially since the
shooting had resulted in the death of a policewoman). See text to n 2 above. This incident in particular
will therefore be discussed at appropriate points of the subsequent analysis without insisting on a strict
separation of the affected interests, where this is not required.
42  See text at n 33 above. 43  ILC Yearbook 1957 vol I, 90, para 20 (Verdross).
82

82 Personal Inviolability of Diplomatic Agents in Emergency Situations

Yet the acceptance of State jurisdiction as a basis for measures of this kind, is
not free from criticism. In the literature, restrictions on inviolability are usually
proposed in a far more limited way.44 State practice, too, presents a more complex
picture.
The area of traffic offences supplies an example for a context in which enforce-
ment action against diplomats does occur from time to time; but it also highlights
the diversity of State practice in this field. Where driving under the influence of
drink was concerned, the US State Department noted in 1985 that drivers entitled
to personal inviolability should, if they were stopped by law enforcement offic-
ers, ‘cooperate if asked to take a sobriety test’ and pointed out that the object of
such a test was ‘not punitive, but preventative’.45 Canada, in the following year,
stated that the police were entitled to stop cars with diplomatic or consular licence
plates on ‘reasonable suspicion that the driver has consumed alcohol’, that they
may request the driver, ‘on reasonable suspicion of impaired driving’ to undergo a
breathalyser test and may ‘[o]‌n evidence of insobriety […] escort the offender to
the local police station’.46
On the other hand, in a case occurring in September 2004, German police
stopped the driver of a car on suspicion of dangerous driving, but released him
when it was established that he was the Bulgarian Ambassador to that State.47 And
on a more general level, the Foreign Affairs Committee of the House of Commons,
in its report on the abuse of diplomatic privileges and immunities, was quite clear
in its view that even diplomats who violated their duty to respect the laws and
regulations of the receiving State,48 did not thereby lose their immunities.49
In light of this, it is difficult to establish consistency of State practice to the effect
that State jurisdiction alone would constitute an acceptable basis for the limitation
of diplomatic inviolability. Even if Canada and the United States could be seen as
examples of States whose domestic policy permits the adoption of enforcement
measures,50 it must be borne in mind that they were both concerned with very spe-
cific situations in which ongoing danger to life and physical integrity to members
of the public will usually exist.51 That distinguishes their position from the wider

44  Denza, for instance, speaks about a ‘very limited exception to the prohibition on arrest or deten-
tion […] on a basis of self-​defence or of an overriding duty to protect human life’, Denza (n 12) 223.
See also Michael Hardy, Modern Diplomatic Law (Manchester University Press; Manchester; Oceana
Publications, New York 1968) 51.
45  State Department (USA), Circular Note (3 July 1985), quoted in Jonathan Brown, ‘Diplomatic
Immunity: State Practice under the Vienna Convention on Diplomatic Relations’ (1988) 37 ICLQ
53, 82.
46  Department of External Affairs (Canada), Circular Note No. X DC-​2070 (22 April 1986),
quoted in Brown (n 45) 84, at n 153.
47  ‘Im Zickzack durch Berlin’, Focus Online (30 September 2004) <http://​www.focus.de/​politik/​
diverses/​bulgarischer-​botschafter_​aid_​87065.html>; Denza (n 12) 223.
48  On this see Chapter 15. 49  Foreign Affairs Committee (n 9), para 42.
50  At least in the case of the United States, some doubts attach to that reading of the Circular Note,
since the Department was at pains to stress the voluntary element of the measure: text to n 45 above.
Canada likewise, would allow police forces to request the driver to submit ‘voluntarily’ to roadside
screening: Department of External Affairs (n 46). On the other hand, the very act of stopping the
relevant vehicle did not seem to require an element of voluntariness in either case.
51  See on situations of that kind the discussion in the subsequent sections.
 83

Inroads into Inviolability? Emergencies and Responses 83

view adopted by the ICJ which, by its reference to any ‘offence’, could be seen as
supporting State jurisdiction as a true, autonomous basis for State action in any
case of violations of domestic criminal law.
A position along such extensive lines would defeat the very purpose of diplo-
matic immunity, of which inviolability forms part—​in the words of the Foreign
Affairs Committee, immunity operates ‘precisely in respect of ’ alleged diplomatic
violations of the laws of the receiving State.52 The opposing view would leave
the doors wide open to abuse by the State in which the diplomatic agent resides.
Freedom from enforcement measures which only applies while the diplomat, in
the eyes of his hosts, behaves himself, is a freedom not worth having.
If a basis for enforcement measures is required, it cannot lie in the general
application of State jurisdiction. Allowing every State to subordinate inviolability
to its own, subjective, considerations, is a retrograde step which would not find
acceptance within the international community. If consensus on limitations is to
be found, it has to be sought in parameters which apply to well defined situations
whose status is recognized under international law, and whose objective nature
makes them, if needs be, reviewable by an independent and impartial tribunal.

2.2.2 Self-​defence
Self-​defence is a justification for enforcement measures by the receiving State
which was invoked with some regularity by the classical writers on diplomatic
law.53 But its direct application encounters difficulties. Apart from the question
whether its supporters have always drawn a clear dividing line between self-​defence
under international and under domestic law,54 the fact must be kept in mind that
the (international) concept of self-​defence has undergone significant changes espe-
cially with the entry into force of the UN Charter: self-​defence today is a well-​
defined, but restrictive right.55
Yet self-​defence as a limitation of inviolability has its defenders even today.
Denza notes that this right can form a basis for arrest or detention in certain cir-
cumstances,56 and reference to self-​defence was also made in the Sandström draft
and the ILC commentary.57
The Draft Articles on State Responsibility do recognize the right as a justifica-
tion for a State’s failure to fulfil an international obligation, but refer in that regard

52  Foreign Affairs Committee (n 9), para 42.

53  See Hugo Grotius (Francis W Kelsey, tr) De Jure Belli ac Pacis Libri Tres (Clarendon Press,
Oxford 1925) 444; Cornelius van Bynkershoek (Gordon J Laing, tr), De Foro Legatorum Liber
Singularis (Clarendon Press, Oxford 1946) 90; Värk (n 1) 117.
54 Bynkershoek, for instance, talks about ‘self-​defence to save one’s self from imminent peril’,
Bynkershoek (n 53) 90.
55  Its invocation in particular in cases in which ‘conspiracy’ had been at the root of the accusations
against the diplomatic agent, would meet with difficulties today. See Värk (n 1) 117.
56  Denza (n 12) 223.
57  See text to n 30 and ILC Yearbook 1958 vol II, 97, art 27, commentary, para 1.
84

84 Personal Inviolability of Diplomatic Agents in Emergency Situations

to self-​defence as enshrined in the UN Charter.58 Article 51 of the UN Charter
however, subjects self-​defence to certain conditions, of which the first is the exist-
ence of an ‘armed attack’ on the receiving State. That, by itself, is more restrictive
than the situation envisaged by some of the drafters: it goes, for instance, beyond
the ‘imminent threat’ to the security of the State which ILC Member El-​Erian
mentioned in 1957.59
There is, furthermore, a temporal aspect that attaches to the right of self-​
defence: the words ‘if an armed attack occurs’ in the UN Charter indicate that the
invocation of this justification presupposes an ongoing attack. It is a point which
played a role when the Foreign Affairs Committee of the House of Commons
investigated the question of the abuse of diplomatic privileges and immunities. In
this context, Freeland (Legal Adviser to the Foreign and Commonwealth Office)
noted that a right to seize persons in self-​defence might exist if there were ‘contin-
ued firing of weapons from the premises of an embassy’—​as opposed to situations
where someone ‘starts firing’ from such premises.60
A criterion which is even more difficult to fulfil, is formed by the threshold
requirement which inhabits the concept of an ‘armed attack’. Giving evidence
before the Committee, Vallat (a former ILC Member), stated that it would be dif-
ficult for a receiving State to justify ‘run[ning] into an embassy because there had
been one or two shots fired, even if that happened to cause an injury or a death’.61
It is a view that is not unopposed. In the literature, Mann expressed the view
that it would be a ‘wholly unacceptable and unrealistic’ suggestion that authorities
would ‘have to wait for the death of a third person before they can intervene’, and
voiced his surprise about the fact that the Committee appeared to have listened
to this ‘with a remarkable lack of concern’.62 Herdegen, on the other hand, would
allow coercive ‘countermeasures’ in the context of self-​defence if there were shoot-
ing from the premises of a mission, but would make this dependent ‘on the dur-
ation of the threat’.63
The interpretation which the ICJ has given to the right to self-​defence, lends
support to Vallat’s view. In Nicaragua, the Court established a threshold for the

58  ILC Yearbook 2001 vol II Pt 2, 27, art 21 and ibid 74, art 21, commentary, para 1. On the
Charter right, see Charter of the United Nations (adopted 26 June 1945, entry into force 24 October
1945) 1 UNTS XVI, art 51.
59  ILC Yearbook 1957 vol I, 90, para 23 (El-​Erian). See also Grotius’ reference to a ‘threatening
peril’, Grotius (n 53) 444.
60  Foreign Affairs Committee (n 9), Minutes of Evidence, 28, para 50 (Sir John Freeland). A refer-
ence to the latter kind of situation had been made by Committee member Ivan Lawrence.
61  ibid 34, para 78 (Sir Francis Vallat). Vallat’s statement appears to address inviolability of prem-
ises, but the question as put by Ivan Lawrence had also referred to ‘act[s]‌to prevent further shoot-
ing’. See also John Beaumont, ‘Self-​Defence as a Justification for Disregarding Diplomatic Immunity’
(1991) 21 Can YB Int’l L 391, 394.
62  Frederick Mann, Further Studies in International Law (OUP, Oxford 1990), 334–​35. Mann
raised these points in the context of VCDR art 22, rather than art 29. That carries a significance of its
own: on the basis of the codification history, it may appear easier to construct inroads into personal
inviolability than into premises inviolability (see text to nn 16–​22 above). In spite of that, Mann
clearly would have allowed the justification of self-​defence even in the latter case (ibid 337).
63  Herdegen (n 33) 753.
 85

Inroads into Inviolability? Emergencies and Responses 85

assumption of an ‘armed attack’: such an attack constituted a ‘most grave’ form of

the use of force and had to be set apart from ‘other less grave forms’.64 ‘[S]‌cale and
effect’ were important for the determination of the existence of an armed attack;
‘mere frontier incident[s]’ would not qualify.65
These findings significantly raise the bar for situations which could be consid-
ered under Article 51 of the UN Charter. ‘[M]‌ere frontier incidents’, after all, can
certainly involve the loss of life—​a consideration which invites a critical assessment
even of cases in which diplomats had engaged in violence, and even where such
activities resulted in the deaths of persons.
That does not mean that self-​defence is per se inapplicable to emergency situ­ations
caused by diplomatic agents. But its practical significance is severely restricted.
Many situations mentioned in the literature, will not qualify:  when Denza, for
instance, recounts the disarming of the Yugoslav Ambassador to Sweden, who in
1988 was found ‘lying under a blanket in a sandpit and brandishing a fully loaded
pistol’,66 she certainly does not refer to an incident which would reach the required
gravity of an ‘armed attack’.
If, in an extremely exceptional case, the relevant gravity could be established,
further requirements would have to be fulfilled: in particular, measures adopted
by the receiving State would have to be proportionate67 and restricted to the spe-
cific situation.68 The latter condition in particular gives a certain shape to acts
adopted in self-​defence which varies, to a degree, from that suggested in the clas-
sical literature: it limits such measures to conduct required by the circumstances
and thus rules out punitive measures against persons enjoying the right of diplo-
matic inviolability.69

2.2.3 Necessity
A clear dividing line between necessity and self-​defence is not always apparent
from the classical literature on the topic: often, one is seen as an element of the
other.70 And yet, there is reason to be more discerning. Necessity, as understood
in contemporary international law, opens options which are closed to self-​defence.

64  Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Judgment) [1986] ICJ Rep 14, 101, para 191 (hereinafter ‘Nicaragua’). See
also Case Concerning Oil Platforms (Iran v United States of America) (Judgment) [2003] ICJ Reports
161, 187, para 51.
65  Nicaragua, 103, para 195. 66  Denza (n 12) 223.
67  See Herdegen (n 33) 753; Foreign Affairs Committee, Minutes of Evidence (n 60) 28, para 50
(Sir John Freeland, with reference to the required failure of alternative measures).
68  See Beaumont (n 61) 398.
69  Värk notes that it was popular in the fifteenth to seventeenth centuries to consider self-​defence
even as a basis for trial and punishment of diplomatic agents, Värk (n 1), 117. Yet Grotius had already
observed that the killing of an Ambassador was possible ‘not by way of penalty, but in natural defence’,
Grotius (n 53), 444. At the same time, he would have allowed the detainment and questioning of
ambassadors (ibid)—​measures which would typically go beyond acts which are strictly indicated by
the circumstances of a situation of self-​defence.
70  See Grotius (n 53) 444 (‘all human laws have to be so adjusted that in case of dire necessity they
are not binding’).
86

86 Personal Inviolability of Diplomatic Agents in Emergency Situations

In the shape it received in Article 25 of the Draft Articles on State Responsibility,
it applies to situations in which essential interests of the relevant State are imper-
illed;71 the commission of an ‘armed attack’ is therefore not required. At the same
time, necessity carries additional requirements which may at times be stricter than
those envisaged by self-​defence.
With regard to the situation of necessity, the Draft Articles demand that a ‘grave
and imminent peril’ against an ‘essential interest’ must have come into existence.72
In this regard, the justification of necessity corresponds well to a need of receiving
States, which has been expressed in the literature by reference to the ‘vital interests’
which might be endangered by certain diplomatic acts.73 The Commentary to the
Draft Articles provides limited assistance towards the interpretation of the phrase
‘essential interests’: it notes that the extent of the essential nature ‘depends on all
the circumstances, and cannot be prejudged’.74 The ILC would allow interests of
the State and its people under this heading, but also interests ‘of the international
community as a whole’.75
In this context, the question may arise whether such interests could include the
property of private individuals.76 It is not a consideration that can be excluded
from the outset. Some private property—​the equipment of privately run hospi-
tals, for instance—​may indeed constitute ‘essential interests’, for its functioning
may be essential for the physical integrity of persons under the jurisdiction of the
receiving State. Damage to other forms of property may result in considerable eco-
nomic loss but might be not irreparable and might not directly threaten interests
on a comparable level. In cases of that kind, necessity would not be an applicable
circumstance precluding the wrongfulness of an enforcement measure, and the
receiving State may have no measures at its disposal except the sanctions envisaged
in the VCDR.77
The danger which the essential interest faces, must be ‘grave and imminent’.78
While the receiving State will have to be the first arbiter to assess the situation, the
ILC has made clear that its discretion is limited: the peril ‘has to be objectively
established and not merely apprehended as possible’.79 In a similar vein, Denza
notes that the relevant danger must be ‘of an extreme and continuing character’.80
It is a condition which can considerably limit the reach of application of neces-
sity. Following the shooting at the Libyan mission in London, for instance, UK
authorities searched, on 27 April 1984, members of the mission who left the

71  ILC Yearbook 2001 vol II Pt 2, 28, art 25(1)(a). 72 ibid.

73  See on this Herdegen (n 33) 754; Ludwik Dembinski, The Modern Law of Diplomacy: External
Missions of States and International Organizations (Nijhoff, Dordrecht, London 1988) 197–​98.
74  ILC Yearbook 2001 vol II Pt 2, 83, art 25, commentary, para 15. 75 ibid.
76  See text to n 4 above.
77  Including the expulsion of the relevant diplomat, see text to n 24 above. Depending on the
circumstances of the case, the ‘reasonable’ period to be given to diplomats in these situations to allow
them to leave the receiving State might, however, be significantly curtailed. VCDR art 39(2) has cer-
tainly been interpreted in a flexible manner in State practice following adoption of the VCDR, Denza
(n 12) 355.
78  ILC Yearbook 2001 vol II Pt 2, 28, art 25(1)(a).
79  ibid 83, art 25, commentary, para 15. 80  Denza (n 12) 223.
 87

Inroads into Inviolability? Emergencies and Responses 87

People’s Bureau.81 But the search came ten days after the incident and it could
thus not have been based on necessity: a danger to essential interests was no longer
‘imminent’.82
A particularly restrictive condition is imposed with regard to the measures that
can be adopted in situations of necessity: such actions must constitute ‘the only
way’ to protect the relevant interest. With regard to that, the Commentary empha-
sizes that the invocation of necessity is not possible ‘if there are other (otherwise
lawful) means available, even if they may be more costly or less convenient’.83
In that regard, the immediate British reaction after the 1984 incident, is illu-
minating.84 If it is indeed possible for a receiving State, even in situations already
marked by the use of lethal force, to first engage in talks with the Foreign Ministry
of the sending State,85 then to terminate diplomatic relations and expel the rele­
vant diplomatic personnel,86 the scope of enforcement measures under necessity
may be very small: in many situations, coercive action will clearly not be the ‘only
way’ to safeguard the essential interest.
The Draft Articles also make reference to the consequences of measures adopted
by the State invoking necessity and specify that such measures may not ‘seriously
impair an essential interest of the State or States towards which the obligation
exists, or of the international community as a whole’.87 In this context, Bao sup-
ports the view that the rule of inviolability itself ‘may be generally regarded as an
underlying principle of the international community’ and concludes that an act
safeguarding essential interests at the expense of diplomatic inviolability ‘is well
beyond the acceptable measures which a receiving State can take within the regime
of diplomatic law’.88
It is certainly true that such measures exert a negative impact on an essen-
tial interest of the international community. At the same time, the inclusion of
the adverb ‘seriously’ invites an evaluation of the consequences of the relevant
enforcement measures—​a consideration which is of importance not least because
equally legitimate interests of the State and of the international community may
be affected by the diplomatic act that causes the peril. The ILC thus accepts that a
balancing mechanism has to be applied: ‘the interest relied on must outweigh all
other considerations, not merely from the point of view of the acting State but on
a reasonable assessment of the competing interests, whether these are individual
or collective’.89
The seriousness of the consequences therefore has to be determined on the mer-
its of the individual case. The extent of the gravity of the danger to the protected
interests, the damage caused to the inviolability of the diplomatic agent, but also

81  Foreign Affairs Committee (n 9), para 102.

82  The Foreign and Commonwealth Office, in fact, sought to base the search on the justification of
self-​defence (ibid). On the difficulties of that approach, see above, section 2.2.2.
83  ILC Yearbook 2001 vol II Pt 2, 83, art 25, commentary, para 15.
84  See text to n 9 above. 85  Foreign Affairs Committee (n 9), paras 74–​75.
86  ibid para 76. 87  ILC Yearbook 2001 vol II Pt 2, 28, art 25(1)(b).
88 Bao 157. 89  ILC Yearbook 2001 vol II Pt 2, 84, art 25, commentary, para 17.
8

88 Personal Inviolability of Diplomatic Agents in Emergency Situations

the duration of the intrusion will all have to be considered as valid considerations
in that regard. A  diplomat who is about to cause serious damage to a military
installation, might well find himself subject to enforcement measures by the receiv-
ing State in the form of being escorted off the premises against his will. That, too, is
an infringement of inviolability. But it is temporary in nature, and it serves to pro-
tect a vital interest of the State in a situation of ongoing peril. Such infringement
does not fulfil the criterion of ‘seriousness’: it was limited to the parameters of the
specific situation and terminated when the peril had disappeared.
The availability of necessity is thus not precluded by the mere fact that the
relevant obligation concerned diplomatic inviolability. The greater difficulty, it
appears, lies in another field:  in the fact that there must be no other means at
the disposal of the receiving State to deal with the situation at hand. The caution
which States have applied in emergency situations, highlights that there are few
incidents in which alternatives measures can positively be said not to have been in
existence.

2.3 Emergency situations threatening the interests of individuals

2.3.1 The right to life
In the literature, the right to life has retained an important position in relation to
emergencies in which diplomatic acts threaten interests of individuals. Denza, for
instance, speaks of possible limitations to diplomatic inviolability where the ‘over-
riding duty to protect human life’ is concerned.90
This position would presuppose a true conflict of norms which has to be resolved
on the basis of a hierarchical solution. But Denza does not elaborate on the legal
grounds for this assumption, nor does she explain the extent of the relevant duties
of the receiving State.
That a State has positive duties in relation to the right to life, has been accepted
by the major human rights treaties which refer to it as a right ‘to be protected by
law’.91 In Osman, the European Court of Human Rights (ECtHR) found that this
included the obligation to take ‘appropriate steps to safeguard the lives of those
within its jurisdiction’.92 Yet the Court also stated that ‘not every claimed risk to
life’ would be a basis for this:93 the risk to life, as created by third parties, had to
be ‘real and immediate’, and the State must have known or ‘ought to have known’
of its existence.94

90  Denza (n 12) 223. On the diplomatic bag, see VCDR art 27(3) and Chapter 14.
91  International Covenant on Civil and Political Rights (adopted 19 December 1966, entry into
force 23 March 1976) 999 UNTS 171, art 6(1) (hereinafter ‘ICCPR’); Convention for the Protection
of Human Rights and Fundamental Freedoms 213 UNTS 222 (adopted 4 November 1950, entry
into force 3 September 1953), art 2(1) (hereinafter ‘ECHR’); American Convention on Human
Rights (adopted 22 November 1969, entry into force 18 July 1978) 1144 UNTS 123, art 4(1) (here-
inafter ‘ACHR’).
92  Osman v The United Kingdom [2000] 29 EHRR 245, para 115. 93  ibid para 116.
94 ibid.
 89

Inroads into Inviolability? Emergencies and Responses 89

In situations like the one triggered by the shooting at the Libyan mission in
1984, the establishment of these parameters would not appear to cause difficul-
ties: there, a real and immediate risk to human life certainly existed. In this regard,
the conditions of the protective duty resemble the parameters of necessity: here,
too, a close temporal proximity between the danger and the situation is to be
required.95 The searching of the diplomats days after the incident, however, fails to
fulfil the conditions: the mere apprehension of a risk does not suffice to establish
the obligation of the State.
But even the existence of a protective duty does not yet determine its status
under international law. All it means is that there are two seemingly divergent
norms which have an impact on the same situation:  the protective duty under
human rights law meets the obligation to respect diplomatic inviolability.
The reference to the former obligation as an ‘overriding duty’96 suggests that its
proponents consider this obligation and the underlying right to carry an inherently
higher character in the international legal system. Some authors have indeed gone
as far as to claim jus cogens character for the right to life.97
Yet it has always been difficult to determine with certainty the provisions of inter-
national law that belong to the circle of jus cogens norms. The destructive effects
of jus cogens militate against an overly inclusive understanding of this category—​
the more so, as attempts have been made in the past to exploit this very effect
of peremptory norms.98 These difficulties have led to extreme results: courts are
reluctant to assess a meeting of norms on the basis of jus cogens alone:99 academic
commentators on the other hand have all too often yielded to the temptation
of assigning jus cogens status to rules—​frequently, without providing satisfactory
substantiation.100
At times, attempts are made to approach the concept of jus cogens by focus-
ing on the non-​derogability of the relevant norms—​an understanding which the
Vienna Convention on the Law of Treaties (VCLT) appears to support.101 On

95  See text to nn 78–​82 above. 96  See text to n 90 above.

97  Karen Parker and Lyn Beth Neylon, ‘Jus Cogens: Compelling the Law of Human Rights’ (1988–​
1989) 12 Hastings International & Comparative Law Review 411, 431.
98  In the 1950s for instance, Shurshalov argued that non-​interference in the internal affairs of
States was a ‘basic principle and concept’ which rendered invalid those treaties that were in conflict
with it. His conclusion on the jus cogens character of non-​interference was that a whole range of trea-
ties—​including the NATO and SEATO pacts—​were invalid: Jan Triska and Robert Slusser, ‘Treaties
and Other Sources of Order in International Relations: The Soviet View’ (1958) 52 AJIL 699, 717,
718 (reference to Vladimir Mikhailovich Shurshalov, Osnovaniia deistvitel’nosti mezhdunarodnykh
dogovorov (Moscow, Izd-​vo Akademii Nauk SSSR 1957) 140–​54.
99  See on this Marko Milanovic, ‘Norm Conflict in International Law: Whither Human Rights?’
(2009) 20 Duke Journal of Comparative and International Law 69, 71, and Dinah Shelton, ‘Normative
Hierarchy in International Law’ (2006) 100 AJIL 291, 305, with particular reference to the ICJ.
100  For further examples, ranging from the duty not to commit transboundary environmental
harm to the ‘right to life of animals’, see the discussion in Shelton (n 99) 303.
101  The VCLT talks about peremptory norms (jus cogens) as those ‘accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international law having the same char-
acter’, Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January
1980) 1155 UNTS 331, art 53 (hereinafter ‘VCLT’).
90

90 Personal Inviolability of Diplomatic Agents in Emergency Situations

that basis, it is tempting to advance the argument that those human rights from
which no derogation is possible, should stand a chance of being included in this
group.102 The four rights which in the three leading human rights treaties fall in
this category, are the freedom from torture or inhuman or degrading treatment or
punishment,103 freedom from slavery,104 the right to life,105 and the nullum crimen
sine lege principle.106
But even the classification of non-​derogable rights as jus cogens is not undis-
puted.107 Where the right to life is concerned, inroads certainly exist: the European
Convention on Human Rights, while stating that no derogation shall be made
from it, allows an exception in cases of ‘deaths resulting from lawful acts of war’108
and even permits limitations of the right.109 Nor could it be said that a globally
accepted scope of the right has been established. Quite apart from differences on
the domestic level,110 the fact remains that even the existing regional human rights
regimes disagree on the boundaries of the right to life.111 Doubt also attaches to the
question whether State practice does in fact support the elevated character of that
right.112 In light of these considerations, it appears difficult to establish the ‘accept-
ance’ and ‘recognition’ of its elevated character by the international community,
to which the VCLT refers:113 the necessary consensus can hardly be identified.114
That does not mean that international law does not recognize the importance
of this right which, in the words of the ECtHR, represents the ‘supreme value in
the hierarchy of human rights’.115 Nor does it mean that the receiving State is not

102  See Richard Lillich, ‘Civil Rights’, in Theodor Meron (ed), Human Rights in International Law:
Legal and Policy Issues (Clarendon Press, Oxford 1984) 115, 118, n 17, and Michael Domingues v
United States, Report No 62/​02, Case 12.285, Inter-​American Commission on Human Rights, OEA/​
Ser.L/ V/ II.116, rev 1 Doc 5 (22 October 2002), para 49.
103  ICCPR art 7; ECHR art 3; ACHR art 5.
104  ICCPR art 8(1) and (2); ECHR art 4(1); ACHR art 6.
105  ICCPR art 6; ECHR art 2; ACHR art 4.
106  ICCPR art 15; ECHR art 7; ACHR art 9.
107  For a discussion, see Lee Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of
the Normative Hierarchy Theory’ (2003) 97 AJIL 741, 772 et seq; Herdegen (n 33) 755.
108  ECHR art 15(2). 109  EHCR art 2(2).
110  The different treatment of the death penalty in retentionist and abolitionist States is perhaps
one of the best known examples in this context. See Laurence Rothenberg, ‘International Law, U.S.
Sovereignty, and the Death Penalty’ (2004) 35 Geo J Int’l L 547, 555.
111  See on this Vo v France [2005] 40 EHRR 12, para 75, on the differences between ECHR and
ACHR where the temporal aspects of the right to life are concerned (with the ACHR providing a pro-
tective duty for the right to life ‘in general, from the moment of conception’), ACHR art 4(1). But see
also the restrictive interpretation given to that norm in Baby Boy v United States, Case 2141, IACHR,
Report No 23/​31, OEA/​Ser.L/​V/​II.54, doc. 9, rev. 1, paras 20(h), 25, 30.
112  See on this Dror Ben-​Asher, Human Rights Meet Diplomatic Immunities: Problems and Possible
Solutions (Harvard Law School, Cambridge 2000) n 242. See also for a generally critical view Anthony
D’Amato, ‘It’s a Bird, It’s a Plane, It’s Jus Cogens!’ (1990) 6 Connecticut Journal of International Law
1, 2, with particular reference to Parker and Neylon (n 97).
113  See n 101 above.
114  Herdegen presumably reaches a similar conclusion when arguing that ‘considerations to the
effect that the protection of human life […] may operate as an autonomous basis for justifying coun-
termeasures leave the path of orthodox reasoning’, Herdegen (n 33) 755.
115  K-​H W v Germany (2003) 36 EHRR 1081, para 66.
 91

Inroads into Inviolability? Emergencies and Responses 91

capable of adopting the relevant protective measures if the lives of persons under
its jurisdiction are seriously endangered.
But such measures have to be subject to conditions which the international
community recognizes. The fact, after all, must be taken into account that enforce-
ment measures, even if they were caused by an intention to protect life, can have
grave consequences on the affected diplomatic personnel and may in some cases
even result in harm greater than the one it sought to avoid. It is for that reason
that they need to be embedded in a framework of justifications which is recog-
nized under the law and that provides clear parameters for the specific emergency
situations that may permit such action.116 By itself, however, the protection of
the right to life is incapable of claiming a status superior to that of other values in
international law.

2.3.2 Self-​defence
Self-​defence, as discussed above, can constitute a basis for enforcement meas-
ures,117 yet it presupposes the existence of an armed attack.118 The question, how-
ever, arises whether, with regard to that element, an attack on nationals of the
relevant State and their individual interests suffices or whether there has to be an
attack on the State as such.
The distinction was broached even during the ILC debates. Speaking to
paragraph 2 of the Sandström draft, which had mentioned self-​defence,119 the
Chairman voiced his concerns about the fact that such a reference was ‘open to
a variety of interpretations’ and noted that it was not clear whether the provision
referred to the defence of the receiving State or of individuals.120
The more extensive understanding of the right, which would have encompassed
the interests of individuals, appears to have been accepted in the older literature,121
but it also finds supporters among contemporary scholars on diplomatic law. Värk
thus notes that actions in self-​defence could be taken as preventative measures in
cases of ‘threat of irreparable damage to person or property regardless of whether
the threat is directed against the state, its agents, or its nationals’.122
That view, however, is not uncontested. In the context of the 1984 incident at
the Libyan People’s Bureau, Higgins noted her scepticism regarding the applica-
tion of the concept ‘to violent acts by the representatives of one state […] directed
against the [receiving State’s] citizens’.123 The observation was made in the context
of the inviolability of mission premises, but it carries equal force with regard to the
inviolability of diplomatic personnel.

116  See, in particular, text to n 75 above and text to nn 129–​30 below.

117  See section 2.2.2 above. 118  See text to n 59 above.
119  See text to n 30 above. 120  ILC Yearbook 1957 vol I, 90, para 19 (Chairman).
121  That, for instance, is how Beaumont understands Bynkershoek’s reference to the possibility of
‘repel[ling] by force’ assaults on citizens, even if initiated by an Ambassador. Beaumont (n 61) 392,
Bynkershoek (n 53) 89.
122  Värk (n 1) 117. 123  Higgins (n 2) 646.
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92 Personal Inviolability of Diplomatic Agents in Emergency Situations

There is, in fact, not much evidence that receiving States would be happy to
invoke self-​defence on the basis that their nationals had been affected by armed
attacks by diplomats.124 France, after the shooting at the Iraqi embassy in 1978, does
not appear to have made reference to such a right,125 and the House of Commons
Foreign Affairs Committee, following the 1984 incident, even expressed the view
that self-​defence ‘could not have acted as a lawful basis’ for forcibly entering the
premises of the mission.126
It is therefore questionable whether self-​defence under these circumstances can
claim a solid foundation in the interpretation which States have given to Article
51 of the UN Charter. And there is reason to support a restrictive position: an
understanding along these lines would give self-​defence a very wide scope, and
the possibility of abuse by the receiving State cannot be dismissed, if enforcement
measures could take an entirely private altercation as their basis.
In any event, however, self-​defence would still have to fulfil the requirements
to which reference has been made above.127 The threshold element in particular,
which inhabits the concept of an ‘armed attack’, causes difficulties in that regard128
and must indeed be considered one of the greatest challenges to the application of
this justification, even if it were accepted that an attack on nationals would suffice.
Self-​defence for the protection of individual interests thus faces obstacles on such a
scale that its scope of application must be said to be exceedingly small.

2.3.3 Distress
The fact that the right to life does not constitute a norm of hierarchically higher
status than diplomatic inviolability, does not mean that international law does not
recognize its value and importance. Both in the classical and contemporary litera-
ture on diplomatic law, it is indeed the danger to the lives of persons in the receiv-
ing State through diplomatic action which caused particular concerns to authors
and led them to advocate the possibility of taking protective measures.129
In international law today, the particular value of human rights is also reflected
in the justifications available to States which find themselves in breach of their
international obligations. Within the Draft Articles on State Responsibility, the
ground precluding wrongfulness which best reflects the importance of the right, is
that of distress.130
Distress can indeed only be invoked if the author of the relevant measure sought
to protect his own life or that of persons entrusted to his care.131 That requirement
is certainly fulfilled if police forces of the receiving State have themselves come
under attack—​as, for instance, in the incident at the Iraqi Embassy in Paris in
1978.132 For other situations, in which lives had been ‘entrusted to the author’s

124  See Brown (n 45) 86. 125  Värk (n 1) 117.

126  Foreign Affairs Committee (n 9), para 95; Herdegen (n 33) 738.
127  See, in particular, text to nn 64–​65. 128  ibid. See also Beaumont (n 61) 394.
129  See Bynkershoek (n 53) 89; Hardy (n 44) 51.
130  ILC Yearbook 2001 vol II Pt 2, 27, art 24. 131  ibid art 24(1).
132  See text to n 3 above.
 93

Inroads into Inviolability? Emergencies and Responses 93

care’, the ILC notes that there had to be a ‘special relationship between the State
organ or agent and the persons in danger’.133
Such a relationship might not be established for all State organs; but it certainly
must be assumed where organs (such as police officers) are concerned whose very
function is the protection of persons under the jurisdiction of the State. It is also at
that stage that the positive duty which the human right to life involves, plays again
a significant role.134 Following the case law outlined above, a special relationship
must therefore be held to exist when law enforcement authorities of the receiv-
ing State knew or should have known of the ‘real and immediate risk’ to persons
under the jurisdiction of the State from acts of the diplomatic agents:135 for in this
situation, the positive protective duty of the relevant State organs has placed the
relevant lives ‘under their care’.
And this is not the only ground on which this relationship can be based. If, for
instance, diplomatic acts endanger the lives of their colleagues, a protective duty
would also arise on the basis of Article 29 VCDR.
An incident involving the French Ambassador to Yugoslavia, Pierre Sebilleau,
in the year 1976 may be recalled in that context: in November of that year,
the Yugoslavian Foreign Minister had arranged a hunt which several diplomats
attended, including Sebilleau and the Ambassador of Austria.136 In the course of
that event, Sebilleau was hit by a bullet, when the gun of his Austrian colleague
(due to careless handling of the weapon) went off.137 Sebilleau was taken to a hos-
pital where he died two hours later.138
If, in an incident of this kind, the authorities of the receiving State could have
intervened to save the life of the diplomat, a ‘special relationship’ between the State
organs and the diplomat would have found its basis in Article 29. Action of that
kind could then have included enforcement measures to the degree that distress
permits.
Silva introduces another scenario which has some relevance in that regard: that
of a diplomat suffering ‘from a fit of madness or [being] under the effect of alco-
hol or of drugs’. He asserts that, in situations of this kind, the authorities of the
receiving State could likewise resort to enforcement ‘until [the diplomat] returns
to normal’.139 It might indeed, under such circumstances, not only be the lives of
other persons, but that of the diplomatic agent himself which is endangered by
his actions, and thus Article 29 could again establish a special relationship. But
the right to resort to coercion would not be triggered in any situation of the kind
outlined by Silva: not every use of alcohol or drugs (and not every ‘fit of madness’)
establishes a peril for the diplomat or his surroundings.

133  ILC Yearbook 2001 vol II Pt 2, 80, art 24, commentary, para 7.
134  See text to n 92 above. 135  See text to n 94 above.
136  ‘French Envoy in Belgrade Killed on Hunting Trip’ New York Times (7 November 1976).
137  ‘Envoy Shot Envoy’ Irish Times (8 November 1976).
138  ‘French Ambassador Killed at Yugoslav Hunt’ Washington Post (7 November 1976).
139  Do Nascimento e Silva (n 4) 93.
94

94 Personal Inviolability of Diplomatic Agents in Emergency Situations

And not every measure is permitted in situations of distress. Like necessity, dis-
tress imposes more specific requirements. But where necessity required the act of
the receiving State to be the ‘only way’ to safeguard an essential interest,140 distress
is a more generous justification: measures may be adopted if there had been ‘no
other reasonable way’ to save the lives in question.141
The comparison of the 1984 incident at the Libyan People’s Bureau in London
and the 1978 shooting at the Iraqi embassy in Paris has relevance in that regard.
The British reaction—​the fact that the United Kingdom contacted the Libyan gov-
ernment first, that she terminated diplomatic relations and entered the premises
only after the Libyan diplomats had left142—​does indicate that options other than
enforcement are at the disposal of receiving States in situations of this kind. Yet to
the French authorities, being compelled to sit out the gunfire and wait until the
danger had passed may have appeared an excessive burden, and one which would
not have fulfilled the requirements of reasonableness.
It is exactly at that point that distress shows a suppleness that necessity lacks.
The ILC, in its Commentary on the Draft Articles on State Responsibility, made
clear that the words ‘no other reasonable way’ did indeed intend ‘to strike a balance
between the desire to provide some flexibility regarding the choices of action by
the agent in saving lives and need to confine the scope of the plea having regard to
its exceptional character’.143 The fact, therefore, that abstention from enforcement
had been the choice of one receiving State, does not necessarily mean that another
diplomatic host who resorted to enforcement in a similar situation, has thereby left
the bounds of reasonableness.
At the same time, distress also involves, where the consequences of the measure
are concerned, a balancing exercise:  the relevant act must be ‘unlikely to create
a comparable or greater peril’.144 In the eyes of the ILC, the interests which the
author seeks to protect must ‘clearly outweigh the other interests at stake in the
circumstances’, and if the relevant measure ‘endangers more lives than it may save
or is otherwise likely to create a greater peril it will not be covered by the plea of
distress’.145
It is a condition which may require the receiving State to make fine distinctions—​
both with regard to the relevant danger and to the methods at its disposal. The
attitude of the diplomatic agents, the weapons (if any) which were employed, the
acts that were already committed, the extent and imminence of the danger to
other persons, and the probability of its realization are all factors which have to
be considered in that regard. Such considerations will also have an impact on the
available options and may, for instance, result in the prioritization of non-​lethal
weapons over the use of deadly force, and in the prioritization of warnings over the
use of force of any kind, where the situation permits this and where this would not
further increase the existing danger.

140  See text to n 83 above. 141  ILC Yearbook 2001 vol II Pt 2, 27, art 24(1).
142  See text to n 9 above and Foreign Affairs Committee (n 9) paras 74–​77.
143  ILC Yearbook 2001 vol II Pt 2, 80, art 24, commentary, para 6.
144  ibid 27, art 24(2)(b). 145  ibid 80, art 24, commentary, para 10.
 95

Conclusion 95

It is an exacting requirement. But it does not rule out coercive action: depending

on the existing peril, there is adequate room for receiving States to employ the neces-
sary measures. If, for instance, such action results in the detention or temporary incap-
acitation of the diplomatic agent while at the same time saving the lives of persons, the
coercive act clearly cannot be said to have caused a ‘greater’ or even ‘comparable’ peril
than the one it sought to avoid.

3. Conclusion

The provision on personal diplomatic inviolability is a principal example for the

employment of absolute terms, which must be considered a particular characteristic of
the VCDR.146 On the basis of its literal meaning, it would allow for no exceptions at
all and would thus compel receiving States to stand at the sidelines even in situations
where diplomatic agents cause a danger to the security of the State or to the safety of
persons under its jurisdiction.
In that regard, the VCDR fails to provide an adequate response to a legitimate
need of the receiving State. Recourse to physical violence by diplomatic agents
may, thankfully, be a relatively rare situation, yet the employment of security per-
sonnel at diplomatic missions can turn incidents of this kind into a more common
feature in diplomatic relations. If such personnel are employed as service staff, they,
too, benefit from personal inviolability, as long as they acted in the course of their
duties.147
This examination, however, has shown that international law does recognize
options at the disposal of receiving States in situations of this kind. It is a
matter that has a long pedigree in scholarly discourse on diplomatic inviolabil-
ity. And yet, it is worth noting that the grounds for State action which have
been discussed in the classical literature on the topic, have often received a
shape in modern international law which gives them extremely small scope of
application.
That is certainly the case where self-​defence is concerned. In cases involv-
ing diplomatic personnel, situations of true self-​defence will be a rare occur-
rence: as understood under international law, self-​defence requires an armed
attack of such gravity that diplomatic action will seldomly qualify in this
regard.
Claims to the effect that the receiving State faces an ‘overriding duty’ to pro-
tect life,148 likewise face challenges. The very existence of such a duty has, under
human rights law, only been accepted where a ‘real and immediate risk’ to the
lives in question exists; and even then, the alleged higher rank of the obligation
to protect life is questionable: jus cogens in particular does not appear to be a suit-
able mechanism for the construction of a hierarchy in this context.

146  See Chapter 20. 147  See n 3 above. 148  Denza (n 12) 223.

96

96 Personal Inviolability of Diplomatic Agents in Emergency Situations

Some of the ‘circumstances precluding wrongfulness’ to which the Draft Articles
on State Responsibility refer, are more likely to offer legally accepted grounds for
enforcement measures.149 Yet they carry their own difficulties.
Two justifications in particular—​necessity and distress—​appear to offer appro-
priate grounds for the priorization of certain interests in situations of emergencies
caused by diplomatic agents. Neither of them requires the threshold of an armed
attack; both are tailored towards situations of peril. Their challenges lie in different
fields. Necessity is reasonably permissive in view of the protected interest: it suf-
fices that an ‘essential’ interest is subjected to grave and imminent danger. But it is
restrictive with regard to the measures that can be adopted: such measures must be
the ‘only way’ to safeguard the affected interest.
Distress is more permissive where the measures are concerned: it suffices that the
author had ‘no other reasonable way’ of saving the interest. But it is restrictive with
regard to the protected interests: it applies only when the author’s life or the lives of
those entrusted to his care, are affected. Both grounds also require a weighing up of
the relevant interests to avoid the causation of even greater harm. Yet within these
parameters, State action is possible—​including enforcement measures against dip-
lomatic agents in situations of this kind.
Distress in particular emerges as a suitable option where diplomats have caused
significant danger in the receiving State: by comparison to the other justifications
and the restrictions imposed on them under international law, it constitutes a
ground which approaches the relevant situation with a degree of flexibility: at the
very least, measures adopted under this justification do not need to be ‘the only
way’ of safeguarding the interest.
It is true that even distress does not cover all areas of dangerous conduct,
let alone areas of diplomatic misconduct in general. It is thus a far cry from the
ICJ’s position that a diplomat could be briefly arrested to prevent the commission
of a crime.150 Even the interests addressed by necessity are not as extensive as that.
But there are reasons for this restrictive position on the exercise of enforcement
jurisdiction. The more the justifying situation moves away from true emergencies
involving essential interests, the greater is the possibility that the State will have
alternatives to coercive action (such as the expulsion of the perpetrators) and that
the possibility of effective reparation might exist for individuals (for instance, by
pursuing a claim in the courts of the sending State, whose jurisdiction the VCDR
expressly confirms).151
And the wider the boundaries of enforcement are drawn, the greater is the
potential of abuse. It is a significant advantage of the justifications envisaged by
the Draft Articles on State Responsibility that they establish extremely specific
conditions, which open the door to enforcement only for the duration of the situ-
ation of emergency. They are thus based on objective parameters; State discretion is

149  Self-​defence is mentioned among these grounds in the draft articles, but in this regard, the ILC
itself makes reference to the Charter of the United Nations (ILC Yearbook 2001 vol II Pt 2, 27, art 21).
150  See text to n 33 above.    151  VCDR art 31(4).
 97

Conclusion 97

significantly reduced. As the balancing of interests, especially in the case of distress,

has shown, the relevant conditions may apply even to detailed particulars of the
measures which the receiving State is entitled to adopt.
It would appear, as has been mentioned above, that States today do not often
infringe the inviolability of diplomatic personnel. But the history of diplomatic
relations knows cases where this has happened, and to say that it will never happen
again, places a large amount of trust in members of the international community,
whose governments, after all, follow a wide range of political ideologies and are
beholden to widely varying constituencies. Handing them the option of enforce-
ment in any case of misbehaviour would give them a power which can no longer
be said to find a basis in the will of the international community as expressed in
the VCDR.
What is required for the solution of emergency situations caused by diplomats
is not a blank cheque for enforcement agents around the world. What is needed
is the establishment of strictly limited exceptions under which every State is sub-
jected to the same parameters which have found the consensus of the international
community: conditions which are clear and accessible, objective in character, and
by their nature well defined.
98

7
The Privileges and Immunities of the Family
of the Diplomatic Agent
The Current Scope of Article 37(1)

Simonetta Stirling-​Zanda*

Introduction

Article 37(1) VCDR extends the privileges and immunities listed under Articles 29 to
36 to the ‘members of the family of a diplomatic agent forming part of its household,
if they are not nationals of the receiving State’.1
Privileges and immunities comprise inviolability and protection of the person
(Article 29) as well as inviolability and protection of their private residence, papers,
correspondence, and property (Article 30), immunity from criminal, civil, and admin-
istrative jurisdiction (Articles 312 and 32), immunity from social security (Article 33),
fiscal immunity (Article 34), immunity from personal services, public services, and
military obligations (Article 35) and immunity from custom duties (Article 36).3
The extension of Article 37(1) has been discussed in a wide body of authorita-
tive literature, both before codification4 and after codification5 within the context

*  The author is grateful to Dr Richard Perruchoud and Grant Stirling for comments and observa-
tions provided by them in connection with this chapter.
1  A diplomatic agent according to art 1(e) 1961 VCDR is the head of the mission (art 1(a), art 14,
for ‘classes’ or a member of the diplomatic staff (art 1(d)), ie members of the staff of the mission hav-
ing diplomatic rank. On preparatory works of art 1, see Eileen Denza, Diplomatic Law, Commentary
on the Vienna Convention on Diplomatic Relations (4th edn, OUP, Oxford 2016) 13–​14; on questions
of terminology and whether the family can be considered ‘diplomatic personnel’, J Craig Barker, The
Protection of Diplomatic Personnel (Ashgate, Aldershot 2006) 18.
2  See however art 31(3) in relation to art 31(1)(a), (b), and (c); Patrick O’Keefe, ‘Privileges and
Immunities of the Diplomatic Family’(1976) 25 ICLQ 329, 345–​6.
3  Jean Salmon, Manuel de Droit Diplomatique (Bruylant, Brussels 1994) 385, para 510; on the
general question of ‘protection’, see Barker (n 1).
4  Mario Giuliano, ‘Les relations et immunités diplomatiques’ (1960) 100 Recueil des Cours de
l’Académie de Droit International 108; A B Lyons, ‘Personal Immunities of Diplomatic Agents’ (1954)
31 BYIL 299.
5 Salmon (n 3)  379–​88; Jonathan Brown, ‘Diplomatic Immunity:  State Practice under the
Vienna Convention on Diplomatic Relations’ (1988) 37 ICLQ 53; Clifton E Wilson, ‘Diplomatic
Privileges and Immunities: The Retinue and Families of the Diplomatic Staff ’ (1965) 14 ICLQ 1265

The Privileges and Immunities of the Family of the Diplomatic Agent: The Current Scope of Article 37(1).
Simonetta Stirling-Zanda. © Simonetta Stirling-Zanda, 2017. Published 2017 by Oxford University
Press.
 9

The Principle in the Light of Preparatory Works at the ILC 99

of the Vienna Convention, in the light of customary law,6 preparatory works,7

domestic decisions, and ‘incidents’ gathered from national and international press.
The purpose of this chapter is to examine whether—​and if so how—​fifty years of
domestic practice, mainly in the legislative field, has helped to clarify the meaning
of Article 37(1).

1.  The Principle in the Light of Preparatory Works at the ILC

and at the Conference

Article 24(3) of the 1955 Report8 of the Special Rapporteur of the ILC (Sandström)
already contained the core of Article 37(1) VCDR.9 According to the Rapporteur’s
commentary to this article, while the general subject of who should benefit from
privileges and immunities lent itself to controversy, there was no disagreement on
the fact that such beneficiaries should comprise the diplomatic agents’ family.10
The article was extensively discussed in June 1957 at the ILC’s ninth session,
when the term ‘household’ replaced the words ‘under the same roof ’.11 The revised
version of 24(3) (new Article 28(1)), figured in the 1957 ILC’s Report to the
twelfth session of the General Assembly (GA) and reads:
Apart from diplomatic agents, the members of the family of a diplomatic agent forming
part of his household, and likewise the administrative and technical staff of a mission,
together with the members of their families forming part of their respective households,
shall, if they are not nationals of the receiving State, enjoy the privileges and immunities
mentioned in articles 22 to 27.12

in part; 1279, including historical practice; Robert A Wilson, ‘Diplomatic Immunity from Criminal
Jurisdiction: Essential to Effective International Relations’ (1984) 7 Loy of L A Int’l and Comp L
Rev 113, 130.
6  ILC Yearbook 1955 vol II UN Doc A/​CN.4/​91 ‘Projet de codification du droit relatif aux rela-
tions et immunités diplomatiques’ Rapport présenté par A E F Sandström, (French) 14, para 14; on
the development of diplomatic law through history: Eileen Young, ‘The Development of the Law of
Diplomatic Relations’ (1964) BYIL 141, 153, 170.
7  Denza (n 1) 319–​20. 8  ILC Yearbook 1955 vol II, (n 6) 12.
9 ibid art 24(3), which states:  ‘Les privilèges et immunités des bénéficiaires reviennent aussi
aux membres de leurs familles et à leurs domestiques privés étrangers pourvu qu’ils habitent sous le
même toit.’
10  ibid 17, paras 57–​58: ‘57. […] La question de savoir à quelles personnes les privilèges et immu-
nités diplomatiques reviennent a suscité des controverses’. However, (re paras 3 and 4) ‘61 […] Tout
le monde est d’accord pour reconnaître que le bénéfice des privilèges et immunités doit s’étendre aux
membres des familles des bénéficiaires habitant sous le même toit.’
11  ILC Yearbook 1957 vol I, 134–​37. The Japanese member suggested that ‘living under the same
roof may be replaced by the formula used in the art. 1 of the Harvard Law School Draft, namely
members of his “household” ’. ibid 135, para 13. The principle was adopted unanimously but for
one abstention. The principle that the members of a diplomatic agent’s family should enjoy the same
immunities as the agent himself, though not if nationals of the receiving State was unanimously
agreed.
12  ILC Yearbook 1957 vol II, 140, art 28(1).
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100 Privileges and Immunities of the Family of the Diplomatic Agent

The commentary specifies that ‘[i]‌t is the general practice to accord members of
the diplomatic staff of a mission the same privileges and immunities as are enjoyed
by heads of mission, and it is not disputed that this is a rule of international law.’
However:
The Commission did not feel it desirable to lay down either a criterion for determining
who should be regarded as a member of the family, or a maximum age for children. The
spouse and children under age at least, are universally recognized as members of the family,
but cases may arise where other relatives too come into the matter. In making it a condi-
tion that a member of the family wishing to claim privileges and immunities must form
part of the household, the Commission intended to make it clear that close ties and special
circumstances are necessary qualifications.13
The ‘Summary of observations’14 of States on the 1957 Draft Articles shows that
only Switzerland and Belgium15 commented on Article 28(1) of the 1957 draft.
Further draft articles—​with some modifications—​were adopted at the tenth
session of the ILC16 and inserted, with commentary, into the report to the General
Assembly (GA).17 Article 28(1) (now 36(1)), however, remained unchanged.18
This final draft version would later serve as working text at the Conference, which
opened in Vienna on 2 March 1961.19
At the conference, technical and administrative staff were ultimately not
included among the categories of people entitled to full privileges and immunities,
while no definition of the family was added20 and Article 36(1)—​Article 37(1) of
the present Convention—​was adopted unanimously.21 In summary, the funda-
mental principle of immunities and privileges for family members has remained

13  ibid 140–​41.

14  ‘Summary of observations received from Governments and conclusions of the Special Rapporteur
A  Emil F Sandström’ (mimeographed), A/​CN 4/​116 2 May 1958 (hereinafter ‘Observations of
Governments’).
15 ibid. ‘In Switzerland, the family circle enjoying privileges and immunities is limited to the
spouse and minor children and, in the case of heads of mission, to parents and parents-​in-​law. The
advantage of this system is that it avoids abuse and controversy, while not precluding the receiving
State from making exceptions in special cases.’ ‘… In Belgium these privileges and immunities are
granted only to the wives and children of diplomatic agents and of administrative and technical staff,
and to no other members of their families.’ (73–​74).
16  ILC Yearbook 1958 vol II, 89–​105. 17 ibid.
18  ibid 101. The general comment to art 36 reads: ‘(2) It is the general practice to accord to mem-
bers of the diplomatic staff of a mission the same privileges and immunities as are enjoyed by heads
of mission, and it is not disputed that this is a rule of international law. But, beyond this there is no
uniformity in the practice of States in deciding which members of the staff of a mission shall enjoy
privileges and immunities. Some States include members of the administrative and technical staff
among the beneficiaries, and some even include members of the service staff. There are also differences
in the privileges and immunities granted to the different groups. In these circumstances, it cannot be
claimed that there is a rule of international law on the subject, apart from that already mentioned.’
19  United Nations Conference on Diplomatic Intercourse and Immunities, Vienna, 2 March–​14
April 1961, Official Records, Volume II, A/​CONF 20/​14, 3 (hereinafter ‘Conference Records Vol I’).
20  See relevant remarks on the subject by the Indian member, ibid 57, para 52. Mr Bouziri’s pos-
ition (Tunisia) also sums up well general feelings towards the whole of art 36: ibid 31, para 34.
21  For a comprehensive summary of members’ positions:  Mehmet Yavuz, ‘Scope of Diplomatic
Family in Vienna Convention on Diplomatic Relations’ (2013) IV Law and Justice Review 163–​82.
 10

Who Are the ‘Members of the Family of a Diplomatic Agent’? 101

basically unchanged throughout the various versions produced by the ILC, such
that Article 28(1) of the 1957 draft contains the essential principle underpinning
what is today Article 37(1); the limited immunities which technical and admin-
istrative staff do now enjoy, are covered by Article 37(2). There are presently no
reservations to Article 37(1)22 by contrast to a considerable number of reservations
to its second paragraph.

2.  Who Are the ‘Members of the Family of a Diplomatic Agent

Forming Part of the Household’ that Must Be Accepted by the
Receiving State Today?

The 1961 Convention has restricted the concept of family23 to family members24
forming part of the diplomatic agent’s household:25 ‘In making it a condition that
a member of the family wishing to claim privileges and immunities must form
part of the household the Commission intended to make it clear that close ties
and special circumstances are necessary qualifications.’26 This intention has been
translated into domestic legislation as well as bilateral agreements.27
In any event, there was, both prior to and at the conference, international con-
sensus on the fact that family members include a spouse28 and minor children,29
with the practice of some States being more liberal than others’ in accepting special
circumstances.
It is not certain that the immunities of the family of diplomatic agents other
than the Ambassador30 extend to conduct prior to marriage.

22 Reservations to the VCDR, available at:  <https://​treaties.un.org/​doc/​Publication/​MTDSG/​

Volume%20I/​Chapter%20III/​III-​3.en.pdf> accessed 15 May 2016.
23  ILC Yearbook 1958 vol II, 102, Commentary to draft art 36 [previously art 28; VCDR art 37],
para 11: ‘[…] The Commission did not feel it desirable to go farther and lay down a criterion for
determining who should be regarded as a member of the family, nor did it desire to fix an age limit
for children. The spouse and children under age, at least, are universally recognized as members of the
family, but in some cases other relatives may also be regarded as qualifying as “members of the family”
if they are part of the household. In making it a condition that a member of the family wishing to
claim privileges and immunities must form part of the household, the Commission intended to make
it clear that close ties or special circumstances are necessary qualifications. Such special circumstances
might exist where a relative kept house for an ambassador, although she/​he was not closely related to
him; or where a distant relative had lived with the family for many years, so as, in effect, to become
a part of it.’
24  Wilson (n 5) 1279–​95.
25 French:  ‘Ménage’; Italian:  ‘Membri della famiglia …che convivono…’; German:  ‘Haushalt’;
Spanish: ‘Formen parte de su casa’. For a comprehensive study of ‘household’, O’Keefe (n 2) 333–​40.
26  If, on the one hand, introduction of the ‘household’ limitation was clearly a development in
terms of existing customary law, it does not appear to have changed what, in some cases, was already
a restrained practice (see Switzerland and Belgium above n 15).
27  See below, section 2.1.
28  Wilson (n 5) 1283, with regard to domestic case law on controversial issues such as separation
and pending divorce proceedings; Brown (n 5) 63–​66.
29  O’Keefe (n 2) 337. 30  Wilson (n 5) 1283.
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102 Privileges and Immunities of the Family of the Diplomatic Agent

2.1  Discretionary agreements ‘on condition of reciprocity’

On the general point of reciprocity,31 in response to the original Report of 1957,
some States commented32 upon the choice between codification in the form of
draft articles—​where reciprocity should be an explicit normative condition—​and
in the form of a treaty, which would guarantee reciprocity to a large extent.33
Opting for the latter solution explains why Article 47 does not mention reci-
procity, although it does prohibit the receiving State from discriminating between
sending States.34
There is, however, no discrimination if a restrictive application by the receiv-
ing State is a response to a restrictive application of a disposition to its own mis-
sion in the sending State (paragraph 2). Equally, States can—​either by custom or
by agreement—​grant each other more favourable treatment than that which is
required by a given provision. Therefore, bilateral treaties ‘on condition of reci-
procity’ that extend the notion of family are not discriminatory.
Specific ‘normative’ reciprocity in relation to the composition of the family is
particularly relevant insofar as difficulties in reaching consensus on its compos-
ition meant that any extensive interpretation of Article 37(1) was left to States’
discretion. However, due to the cultural elements involved,35 reciprocity may not
be attainable in reality between countries of fundamentally different religious and
social backgrounds, irrespective of theoretical approaches to what ‘should’36 be
considered to be universally accepted values.
The VCDR itself specifies or implies a number of instances when certain issues
can be agreed bilaterally.37 In the case of Article 37(1), preparatory works show that
deviations from the rule, such as exceptions to the principle of nationality under
Article 37(1), or agreement on the family’s composition and the age of children,

31  Michel Virally, ‘Le principe de réciprocité dans le droit international contemporain’ (1967)
222 Recueil des Cours 5; Jean-​Paul Niboyet, ‘La notion de réciprocité dans les traités diplomatiques
de droit international privé’ (1935) 52 Recueil des Cours 253; Paul Lagarde, ‘La réciprocité en droit
international privé’ (1977) 154 Recueil des Cours 163.
32  Observations of Governments (n 14 above) for differing views on the subject of reciprocity.
33  Responding to these comments the Rapporteur considered that ‘if a codification in the form of
a treaty was contemplated, then reciprocity was to a large extent guaranteed by the treaty. Reciprocity
may, however, be conceived of as a condition governing the grant of advantages more extensive than
the minimum laid down as obligatory. If it is the intention to give expression to this idea, then either
a special provision may answer the purpose or else a clause may be added in each article in which the
question of reciprocity arises. If the draft does not take the form of a convention, the question of reci-
procity will become more important. Preferably, a decision should be postponed until after the articles
have been reviewed, by which time it will be clearer whether a reciprocity clause is necessary.’ ibid at 9.
34  According to Denza (n 1) the aim of art 47 is to obtain ‘in each state party a uniform regime’.
35  Salmon (n 3) 141, para 380. Conflicts of values may dictate a State’s decision to set aside a for-
eign ‘personal status’ (by applying ‘ordre public international’ ), for instance in cases of polygamy and
repudiation.
36  ibid 382: ‘Dans une période de rapide évolution des mœurs la situation de concubine, d’époux
de fait ou de “compagnon” ne peut plus être ignorée.’
37  Art 47(2)(b) admits States’ extension to each other of a treatment more favourable than what is
required under the VCDR. Examples of discretion concern size of mission (art 11); arts 15, 17, 33(4),
41(3). Terms such as ‘normally’, ‘reasonably’ (art 38), ‘to the extent admitted by the receiving state’
(art 37.4) also allow for States’ discretion.
 103

The Factors Guiding the Composition and the Nature of the Mission 103

are possible. No research exists to our knowledge on the number and nature of
bilateral treaties presently in force, on the subject of the diplomatic agent’s family.
However, national legislation is or should be available for anyone to view; should
States entertaining diplomatic relations consider such relations to be in violation
of the VCDR, they would be free to voice their concern and to object. Lack of
protestation may therefore be considered to constitute tacit acceptance.38 Existing
practice, however limited, appears to show a conciliatory approach that reflects
both an apparent general tolerance of cultural differences and an acceptance of
domestic discretion on particular matters.39

3.  The Factors Guiding the Composition and

the Nature of the Mission

3.1  The spirit of the Vienna Convention

Beyond what conventional and customary law clearly require, the very nature of
diplomatic relations commands cooperation and open-​mindedness in the execu-
tion of the Convention.40 In particular, privileges and immunities do not mean
that the receiving State forfeits its sovereignty.41
The rule concerning the requirement of agreement by the receiving State to the
appointment of the head of a mission does not apply to other diplomatic agents
and their families.42 According to Article 7, subject to limitations of nationality
and size of the mission, ‘the sending State may freely appoint the members of the
staff of the mission’.43 Article 10(1) lays down requirements for notification, but
the article44 does not give any further indications as to what the effects of notifica-
tion are. It can be understood as meaning that international law dictates that any
member of the family designated as such by the sending State enjoys privileges and
immunities by virtue of the mere fact of notification or, to put it in legal terms,
privileges and immunities take legal effect because of the notification itself. This is a
theoretical presumption. In reality, notification is not sufficient, but requires com-
pliance with the receiving State’s procedural and substantive legislation—​albeit

38  This could be theoretical as practices may be ‘unwritten’. See, for instance, the Holy See’s prac-
tice of a six-​week approval time from date of application. In the case of a homosexual candidate for the
post of French Ambassador to the Holy See, approval was put on hold for nine months, until France
dropped its bid: Harriet Sherwood and Kim Willsher, ‘France Drops Bid to Appoint Gay Vatican
Ambassador, Reports Say’ The Guardian (London, 12 October 2015).
39  See below, section 3.2. 40  Salmon (n 3) 141, para 216.
41 The Vitianu case explains very clearly why the diplomatic agent’s rights cannot come into exist-
ence without the approval, will, and participation of the receiving State. The decision also expands
on the various forms that that approval can take: Vitianu Case Tribunal Fédéral (Switzerland) 24 June
1949, ASDI 1950, 146; ADILC, 1949, no 281; Salmon (n 3) para 234.
42  Refusal of ‘agrément’ of the Head of the mission, in practice, may depend on the personality of
the members of family, Salmon (n 3) 144, para 223.
43  Similar to art 4 of the 1957 draft articles, ILC Yearbook 1957 vol II, 133.
44  Brown (n 5) 56–​58.
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104 Privileges and Immunities of the Family of the Diplomatic Agent

in accordance with the VCDR—​in terms of the content of the notification. The
question of whether that legislation is in compliance with international law and
whether, if not, it can be contested, is not to be dismissed as irrelevant; however,
the fact is that anyone who claims the status of member of the mission and in par-
ticular the benefits of privileges and immunities, must prove that he/​she is entitled
to receive them.45 There is no automatic entitlement. The reality is therefore that
the receiving State enjoys a considerable margin of discretion in deciding who
should qualify, who does qualify—​and who does not.
In theory, Article 9(1) offers a safeguard against unwanted agents.46 However,
it does appear from scant practice that members of the family have, at least, the
right to enter the territory of the receiving State47 and are therefore not subject to
immigration controls, though they are not exempted from ordinary visa require-
ments.48 There may be evidence of a trend for receiving States to try and obtain as
much information as possible about incoming diplomatic agents whose name is
notified to them.49
Article 11 could add an indirect form of limitation by allowing the receiving
state to impose a ceiling. It could theoretically be invoked to ask for a reduction of
family members, for instance in the case of multiple spouses and children, though
no specific practice appears to exist on this matter.50 Whatever the actual use of
the above dispositions, in practice the sending State names those who will compose
the mission, but the host State retains a measure of ‘droit de regard’ as to how the
mission will be composed.

3.2  Domestic legislation

The concept of family51 varies from State to State52 and therefore both the host
and the sending States’ legislation is relevant for the purpose of Article 37(1): the
sending State will determine the personal legal status of the family member within
that State53 but the law of the receiving State may not consider that determin-
ation as being in line with principles of domestic family law. Article 37(1) could
be considered in some respects as containing a reference to the two systems of law,
leaving the choice of law to the receiving States, albeit within the framework of
international conventional law. This view is supported by the legislation of many

45  Salmon (n 3) 165, para 263. 46  ibid 481, para 626.

47  See however VCDR art 39(1). 48  Salmon (n 3) 385, para 510.
49  ibid 164, para 262. See Netherlands’ Protocol Guide for Diplomatic Missions and Consular
Posts, 2.2  <http://​www.diplomatmagazine.nl/​wp-​content/​uploads/​protocol-​guide-​for-​diplomatic-​
missions-​and-​consular-​posts-​january-​2013.pdf> accessed 15 May 2016.
50  Salmon (n 3) 156, para 248. 51  Brown (n 5) 63.
52  For UK practice, Denza (n 1) 320–​21.
53  As Salmon (n 3) 380 states, ‘[L]‌e concept de famille peut lui-​même varier dans le même système
de droit (légitime, naturelle, adoption, alliance, etc.)’. The status itself will depend upon questions of
nationality and domicile. There is no conventional law on personal status. For example, France makes
wide use of foreign law while the US applies its own law.
 105

The Factors Guiding the Composition and the Nature of the Mission 105

States where immunities in general and diplomatic immunities in particular are

part of their ‘private international law’ legislation.54
An unresolved question is whether the host State violates international law by
objecting to specific members of the family joining the ‘household’, the more so
as the decision does not need to be explained55 and no judicial practice appears to
exist on this matter.

3.2.1  Questions of procedure

An examination of available State legislation reveals that the procedures for cer-
tifying individuals as diplomatic agents56 differ from State to State but that such
procedures are strictly regulated in precisely laid out legislative documents. As is
the case in the US with certificates delivered by the State Department,57 certifi-
cation can be determinant in terms of proving the status of a diplomat, in a way
that is binding on domestic courts. In France, Belgium, Switzerland, and many
other countries, an individual whose name is notified to the ‘service du protocole’
is provided with a personal identity card (or ‘carte de légitimation’) that allows the
precise regime of privileges and immunities enjoyed by the cardholder to be identi-
fied. There is no open ‘register’ of the domestic practice of States but it is assumed
that relevant information is made available upon request by the foreign offices of
the States concerned.

3.2.2  The substantive practice of States

According to the principle of the certainty—​and transparency—​of the law, States
should make their own legislation on the meaning of ‘family’ for the purpose of the
VCDR, openly available for anyone to consult.58 Often this is not the case though,
as with questions of certification, it is likely that such information will be made
available upon request.
While guidelines on the diplomatic protocols of many western States are avail-
able on the internet, this rarely applies to non-​western States, in which case careful
research of domestic law is necessary. Examples from domestic legislation offer a

54  Eg Code de DIP Tunisien, art 19. Léna Gannagé ‘Les méthodes du droit international privé
à l’épreuve des conflits de cultures’ (2013) 357 Recueil des Cours 223; Sami Aldeeb and Andrea
Bonomi (eds), Le droit musulman de la famille et des successions à l’épreuve des ordres juridiques occi-
dentaux (Schulthess, Zurich 1999); Elisa Giunchi, Muslim Family Law in Western Courts (Routledge,
London 2014).
55  VCDR art 9(1). 56  Salmon (n 3) 168, para 266.
57  US Dept of State, Diplomatic and Consular Immunity, Guidance for Law Enforcement and
Judicial Authorities, (rev July 2011) <http://​www.state.gov/​documents/​organization/​150546.pdf>
accessed 16 May 2016.
58  The creation of a ‘universal diplomatic guidance’ register would help in terms of drawing up
a comprehensive picture of present domestic legislation, allowing a clear account to emerge of how
States interpret VCDR art 37(1).
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106 Privileges and Immunities of the Family of the Diplomatic Agent

diverse view of the more or less liberal interpretation given by States to the concept
of ‘family’ with a variety of attitudes that are a clear reflection of cultural diversity.
In Belgium,59 diplomatic agents and members of their family must be registered
with the ‘Direction du Protocole’, as each member of the mission is required to carry
an identity document. In terms of current practice, family members constitute the
spouse, the ‘legal’ partner (according to conditions specified in a ‘circulaire’) and chil-
dren who are entirely under the charge of the member that is entitled to the bene­
fits and who are part of the household.60 For the purpose of obtaining a ‘permis de
séjour’ in Belgium, parents and parents in law are not considered to be members of
the household or members of the mission enjoying privileges and cannot, therefore,
obtain a special identity card from the Protocol directorate. Failure to comply with
regulations on registration upon arrival and departure can affect future requests.61
Switzerland’s conditions are particularly liberal in respect of cohabitation and
same sex partners and of children, whether children of a ‘spouse’ or of a cohabiting
partner.62
Turkey’s position is clearly spelled out in a ‘Guide to Diplomatic Missions in
Turkey’, available on the web.63 It stipulates that ‘[o]‌n the basis of reciprocity chil-
dren between 18–​25 years of age and studying in Turkey and; [sic] the parents and
parents in law of the [sic] all type of card bearers can obtain 4th category ID card –​
Blue Foreign Mission Card –​which provides the bearer no privileges and immuni-
ties other than residence permit exemption.’ It accepts ‘ “unmarried partners (not
the same sex), however legally recognized by the regulations of the sending state”,
upon the notification of the Mission by a verbal Note […]’.64
More examples of national legislation can be found on the web.65

59  Royaume de Belgique, Ministère des Affaires Etrangères, Direction du Protocole, Note circu-
laire: Procédure administrative en vue de l’accréditation des membres du personnel diplomatique et
du personnel administratif et technique des missions diplomatiques en Belgique ainsi que des mem-
bres de leur famille (10 Juin 2012), 1.13 <http://​diplomatie.belgium.be/​en/​services/​Protocol/​circu-
lar_​notes/​diplomatic_​missions> accessed 16 May 2016; see at the same site also Circular Note: The
privileged status of the spouses and unmarried legal partners of the staff members of diplomatic
missions (16 May 2008):  ‘In Belgium, the term “spouses” is used to describe two people forming
a couple under the institution of civil marriage. In Belgium, civil marriage may take place between
people of the opposite sex and between people of the same sex. Polygamous marriage is considered to
be contrary to public policy and morality and is therefore not accepted as legal marriage in Belgium.’
60  For a comprehensive updated view of Belgian practice, Berthold F Theeuwes (ed), Diplomatic
Law in Belgium (Maklu, Antwerpen 2014).
61  Circulaire Administrative (n 59), para 1.13.
62  Switzerland, Federal Department of Foreign Affairs, ‘Persons Admitted as Members of the Family
Group (last update December 2012)’ <https://​www.eda.admin.ch/​eda/​en/​fdfa/​fdfa/​organisation-​fdfa/​
state-​secretariat/​protocol/​manual-​for-​embassies-​and-​consulates/​members-​family/​persons-​admitted-​
members-​family-​group.html> accessed 16 May 2016.
63 Republic of Turkey, Ministry of Foreign Affairs, ‘Guide to Diplomatic Missions in Turkey’
<http://​www.mfa.gov.tr/​data/​Guide-​to-​Diplomatic-​Missions-​in-​Turkey.pdf> accessed 16 May 2016.
64  ibid 11, 2.2.1.
65  United States, Department of State, ‘Diplomatic and Consular Immunity –​Guidance for Law
Enforcement and Judicial Authorities’ (revised 2015) <http://​www.state.gov/​documents/​organiza-
tion/​150546.pdf> accessed 16 May 2016; Thailand, Department of Protocol, ‘Guidance on Protocol
Practice’ (2014) <http://​www.mfa.go.th/​main/​contents/​images/​text_​editor/​files/​140103165905_​
140103160010_​Guidelines%20on%20Protocol.pdf> accessed 15 May 2016; France, Ministère des
 107

The Factors Guiding the Composition and the Nature of the Mission 107

As far as judicial practice is concerned, citation of isolated judicial decisions on

issues that are unregulated either by the Convention or by bilateral agreements,
may be relevant to the national jurisdiction from where the decision emanates, but
unless replicated in other jurisdictions they only demonstrate and reinforce States’
discretionary competence on a number of cognate situations.66

3.2.3  Same-​sex partners

This is a constantly evolving issue, but one which, in the specific field of diplo-
matic relations, on the whole does not reach the courts and the public sphere in
general.67 A Canadian article on the subject clearly and comprehensively sums up
the level of discreet acceptance that generally applies in practice.68 If more research
were available it would probably offer an interesting insight into an increasing,
though still modest recognition of diversity around the world, echoing slow
domestic legislative changes in respect of same-​sex partnerships and in some cases
marriage. French rules of private international law show how complex the ques-
tion of recognition is for national courts faced with international same-​sex unions,
when the union is celebrated abroad according to domestic criteria.69
The Turkish ‘Guide’ contains a disposition of rare clarity on this particular sub-
ject: ‘As the Turkish laws do not allow; [sic] a same-​sex partner cannot be accepted
as a family member of a diplomat and therefore no ID card could be issued. They
can however apply for a residence permit to the relevant Turkish authorities (with-
out the intermediary of the Ministry) as a regular foreigner. The Ministry kindly
reminds the Missions not to present same sex partners as private servants.’70

Affaires Etrangères et de la Coopération Internationale, Protocole (Guide), mis à jour 2012 <http://​www.
diplomatie.gouv.fr/​fr/​le-​ministere-​et-​son-​reseau/​protocole/​> accessed 16 May 2016; The Netherlands,
n 49 above; Israel, Being a Diplomat in Israel <mfa.gov.il> accessed 18 May 2016; Spain, Ministerio de
Asuntios Exteriores y de Cooperacion, ‘Practical Guide for the Diplomatic Corps accredited in Spain’
(Madrid 2010) <http://​www.exteriores.gob.es/​Portal/​es/​ServiciosAlCiudadano/​SiViajasAlExtranjero/​
Documents/​guia_​practica_​ingles_​2010.pdf> accessed 16 May 2010. For more instances of State prac-
tice on the topic, see Wilson (n 5) 1279 et seq (pre-​convention); Brown (n 5) 63 et seq; Yavuz (n 21)
176–​78.
66  Eg does the spouse who does not live within the ‘household’ still enjoy immunity and privileges?
When should a distant relative be considered as part of the ‘family’? What about the age of children?
See Salmon (n 3) 381–​82, para 606.
67  See, however, n 38 above; or the instance of the US Ambassador to Australia, Huffington Post,
Huffpost Queer Voices (13 August 2013) <http://​www.huffingtonpost.com/​2013/​08/​13/​john-​
berry-​australia-​amba_​n_​3745668.html> accessed 16 May 2013; and the instance concerning US
Ambassadors to Spain and Denmark, Sunnivie Brydum, ‘Obama Nominates Two More Openly Gay
Ambassadors’ Advocate (14 June 2013) <http://​www.advocate.com/​politics/​2013/​06/​14/​obama-​nom-
inates-​two-​more-​openly-​gay-​ambassadors> accessed 16 May 2016. On UK and US practice see Denza
(n 1) 321 and 323.
68  Sneh Duggal, ‘Same Sex Diplomats Point to Progress’ Embassy News (Ottawa, 22 January 2014)
<http://w​ ww.embassynews.ca/​news/2​ 014/​01/​21/​same-s​ ex-​diplomats-​point-​to-​progress/​45056?page_​
requested=1> accessed 16 May 2016.
69  Hélène Péroz, ‘La loi applicable aux partenaires enregistrés’ (2010) 137 Journal du droit inter-
national (Clunet) 399.
70  Republic of Turkey (n 63) para 2.2.1.
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108 Privileges and Immunities of the Family of the Diplomatic Agent

3.2.4  Polygamy in its various forms

Polygamy71 is increasingly being considered illegal in many countries. This is
the case in Canada, for instance, where a Research Report of the Department of
Justice concludes that ‘polygamy violates women’s rights to be free from all forms
of discrimination’ and therefore violates several treaties.72 The Tunisian ‘Code de
Statut personnel ’ already prohibited polygamy by 1956.73 France’s general stance
on polygamy is complex and depends upon specific circumstances; for diplomatic
purposes, the concept of ‘family’ does not include a polygamous couple, a solu-
tion similar to that of Belgium.74 The UK ‘does not accept more than one wife of
a polygamous married diplomat’.75

4.  Questions of Nationality

Members of the family enjoy the privileges and immunities specified in Articles 29
to 36 if they are not nationals76 of the receiving State.
According to preparatory works, some States were concerned that granting a
concession of privileges and immunities to nationals of the receiving State would
stir resentment against discriminatory treatment.77 On the other hand, Belgium
commented on possible dangers of not granting immunity to a spouse because
her nationality differs from that of the sending State’s, a question also raised by
The Netherlands in relation to Draft Article 30.78 The VCDR solution is that,

71  Yadh Ben Achour, Le rôle des civilisations dans le système international –​Droit et relations interna-
tionales (Bruylant, Brussels 2003) 290 para 249.
72 Department of Justice, Canada, ‘Polygamy and Canada’s Obligations under International
Human Rights Law’ Research Report (September 2006) <http://​www.justice.gc.ca/​eng/​rp-​pr/​other-​
autre/​poly/​chap8.html> accessed 16 May 2016; Brown (n 5)  64, quotes evidence of one instance
when Australia has given effect to a polygamous marriage.
73 <http://​www.e-​justice.tn/​fileadmin/​fichiers_​site_​francais/​codes_​juridiques/​Statut_​personel_​
Fr.pdf> accessed 15 May 2016; however, polygamy is still allowed in most Muslim countries: Maurice
Borrmans, ‘Le nouveau Code algérien de la famille dans l’ensemble des codes musulmans de statut
personnel, principalement dans les pays arabes’ (1986) 38 Revue Internationale de droit comparé 133.
74  Belgium (n 59).
75  O’Keefe (n 2) 346; Denza (n 1) 321 on UK practice and 323 on US practice; Salmon (n 3),
385, para 512.
76  O’Keefe (n 2) 340–​43.
77  Conference Records Vol I (n 19 above), 205 para 59 (Iranian delegate); 196, para 46 (Japanese
delegate).
78  Observations of Governments (n 14 above):  According to Belgium ‘There would appear to
be some danger in this restriction, e.g. the possibility that the wife of the head of a mission or of a
diplomatic agent might be liable to criminal proceedings. It seems advisable to stipulate that, at any
rate, the wife of the head of a mission shall enjoy diplomatic immunity even if she is a national of the
receiving State. The Rapporteur thinks that this question is not without importance. Pressure may be
brought to bear on a diplomatic agent if his wife is subject to the jurisdiction of the receiving State.
On the other hand, such cases are surely rather rare and, at all events, the situation can very easily
be prevented from arising.’ (76). The Netherlands suggested an amendment to the effect that, if the
member of the family was a national of both the sending and the receiving State, he should enjoy the
same benefits as if he were a national of the sending State only. ibid 80.
 109

Gainful Occupation 109

in the absence of special agreements,79 members of the diplomatic agent’s fam-

ily holding the nationality of the receiving State do not enjoy the privileges and
immunities specified in Articles 29 to 36 and are therefore treated in the same way
as all other nationals. Privileges and immunities, however, should not be denied
to family members who are foreign nationals and who are permanent residents of
the receiving State.80
Concerns also emerged in relation to the nationality of children born in a receiv-
ing State where jus soli was the applicable law,81 though it was held that the ques-
tion was one of private international law rather than diplomatic law.82 No relevant
disposition was included in the VCDR, but a special Protocol on the subject was
opened for signature on 18 April 1961.83

5.  Gainful Occupation

No disposition within the VCDR similar to Article 42 in respect of diplomatic

agents, bars members of their family from exercising professional or commercial
activities in the receiving State, but without the benefit of immunity.84 There is,
however, evidence85 of a reticence among States to allow members of the family to
work, in the absence of conventional agreements, particularly in the case of non-​
European missions.86

79  See State practice cited in Salmon (n 3) 384.

80  Salmon (n 3) 384, para 508. ‘Permanent residence’ is relevant in other situations, eg VCDR
art 38.
81  Conference Records Vol I (n 19 above) 202, para 3, on art 35 (deleted): ‘Mr. de Erice y O’Shea
(Spain), introducing the working group’s redrafting of article 35, said that the problem of the nation-
ality of the children of diplomatic agents born in the territory of the receiving State was an extremely
complex one, which causes serious difficulties for many countries.’
82  ibid para 9: according to Mr Ponce Miranda (Ecuador) ‘[…] Nationality legislation involved
matters of public policy (ordre public) in which the foreign law was always set aside. The attempt to
make the foreign law prevail over the territorial law of the country concerned was particularly unfor-
tunate because in many States, including Ecuador, nationality was regulated by the Constitution
itself.’ See also, within the same contribution, paragraph 11, another passage where strong concerns
for domestic law are being addressed. Acquisition of nationality by marriage was also mentioned: see
Mr Monaco (Italy), ibid para 13.
83  Optional Protocol Concerning Acquisition of Nationality (18 April 1961) <http://​legal.un.org/​
ilc/​texts/​instruments/​english/​conventions/​9_​1_​1961_​nationality.pdf> accessed 16 May 2016.
84  Brown (n 5) 63; Denza (n 1) 324–​27 with examples of practice.
85  Spain, Practical Guide (n 65), 21, 2.2.8.
86  See COE Recommendation ‘R (87) 2’, regarding a model of agreement allowing members of a family
the exercise of a gainful occupation, adopted by Committee of Ministers on 12 February1987 and
Explanatory Memorandum, <http://​www.coe.int/​t/​dlapil/​cahdi/​Source/​Adopted_​texts/​Recommendation_​
87_​2_​EN.pdf> accessed 16 May 2016. Additional privileges and immunities may be contained in
bilateral agreements, most of which are styled as consular agreements, but other agreements, such as
Treaties on Friendship, Commerce, and Navigation may contain provisions that pertain to the immu-
nities of consular and diplomatic personnel and to the embassy and consular offices.
10

110 Privileges and Immunities of the Family of the Diplomatic Agent

6.  Disquiet with Immunities and Suggested Solutions

A vast body of literature is dedicated to abuses of immunities and to proposed

solutions.87 However, there is no evidence that the family is more likely to abuse
their immunities than the agent himself or herself. If anything, a case could be
made for a reinforced protection of the family’s interests. If one of the rationales for
granting immunity to family members is based on humanitarian considerations,88
granting absolute diplomatic immunity to abuses of the rights of spouses and chil-
dren would seem incongruous. It may then be that some mechanisms should be
devised by which the protection of such family members may be guaranteed as a
remedy for lack of jurisdiction.89
On the wider issue which could obviously also affect the diplomatic agent’s fam-
ily, it may be that practice should develop in the sense of a progressive distinction
between criminal activities that are a threat to the interests of the host State (in
the sense of jurisdiction based on the protection principle) and crimes that only
affect individual interests. Ultimately, it may become a question of proportionality
between the interests of maintaining good foreign relations and that of preserving
State security.

Conclusion

The lack of precision in defining the two key notions of ‘family’ and ‘household’ in
the VCDR has meant that States have retained a large margin of discretion in the
interpretation of both terms, to be exercised within the context of a long history of
customary practice. Nothing in the preparatory works contradicts this statement.
States have used their discretion reasonably, within the spirit of the Convention,
in codifying their own views of how both terms should be interpreted within their
own domestic legal systems.
Faced with situations requiring interpretation of Article 37(1), legal officials
should refer to bilateral treaties, where such treaties exist, the preparatory works of

87  In general: J Craig Barker, The Abuse of Diplomatic Privileges and Immunities (Ashgate, Aldershot
1996). For the particular case of the US, see Terry A O’Neill, ‘A New Regime of Diplomatic Immunity:
The Diplomatic Relations Act of 1978’ (Comment) (1980) 54 Tul L Rev 661, 665; R Scott Garley,
‘Compensation for “Victims” of Diplomatic Immunity in the United States: A Claims Fund Proposal’
(1980) 4 Fordham Int’l LJ 135; Mitchell S Ross, ‘Rethinking Diplomatic Immunity: A Review of
Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities’ (1989) 4 Am
U J Int’l L & Pol’y 173.
88  See Brown (n 5) 15.
89  Most common claims concern divorce, alimony, child custody, child support, and paternity: on
family courts dealing with these issues and on the failure of the United Nations wage garnishment
program of 1999 see Amanda M Castro, ‘Abuse of Diplomatic Immunity in Family Courts: There’s
Nothing Diplomatic About Domestic Immunity’ (2014) XLVII Suffolk Univ LR 353, 362 et seq.
 1

Conclusion 111

the VCDR, general rules of treaty interpretation including the principle of good
faith,90 customary law, general principles of law,91 domestic legislation, and judicial
and non-​judicial practice.92 Resort to considerations of ‘ratio legis’ may help: the
main one may be that pressure could be exercised on the family, which would
impair the mission of the diplomatic agent.93 Other theories have, however, been
put forward, such as international courtesy or exercise of common humanity.94
Beyond the narrow field of diplomatic law, an overview of State practice such
as it emerges—​primarily from domestic legislation—​shows that States have now
reached a certain level of international stability in terms of what they mean by the
term ‘family’. However diverse and at times conservative, such State practice shows
restraint and recognition of each others’ differences: there are few, if any examples
of open conflicts as to what the term ‘family’ means and few, if any, contesta-
tions of each other’s legislative dispositions. Whatever the cultures of individual
States, there is evidence of mutual understanding and of restraint with regard to
extending or imposing domestic rules. It is unlikely that what may presently be
interpreted as discriminatory practices—​for instance in relation to same sex part-
ners—​will be phased out by legal instruments rather than through progressive
changes in cultural attitudes.
Finally, there is, in general, no indication that Article 37(1) requires to be modi-
fied. It may, however, become necessary to introduce some parallel mechanisms
to provide the family itself with remedies for family related claims that cannot at
present be responded to.
However, our initial intention of trying to ascertain the meaning of Article 37(1)
by looking at practice, has been partly defeated by a frustrating difficulty in gath-
ering judicial practice95 and in obtaining ‘guides’ or legislative documents relative
to privileges and immunities granted by various States to their beneficiaries. Such
documents are probably available on request, but not easy to find on the web or in

90  Vienna Convention on the Law of Treaties (adopted 23 May 1969; entry into force 27 January
1980) 1155 UNTS 331, arts 31, 32, 33.
91  Statute of the International Court of Justice (adopted 26 June 1945, entry into force 24 October
1945) art 38(c).
92  ibid art 38(d); Brown (n 5) 63ff.
93  See Sir G Fitzmaurice’s comment that: ‘Lastly, unless the members of a diplomatic agent’s family
enjoyed immunity, pressure could be brought to bear on the diplomatic agent through his family.’
ILC Yearbook 1958 vol I, 162. See also Foreign Affairs Committee (UK), ‘The Abuse of Diplomatic
Immunities and Privileges’ HC Paper 127 (1984–​85) Minutes of Evidence, Appendix 4.
94  According to Wilson (n 5) 1282, the then Soviet view favoured motives of courtesy while US
relied on humanitarian considerations. However, in Skeen v Fed Rep Of Brazil, 566 F. Supp. 1414
(1983),121 ILR 482, Columbia, US, District Court dismissed the plaintiff ’s argument that a family
member is an employee or agent of the foreign government, indicating instead that ‘there is a strong
argument that extension of diplomatic immunity to family members is a courtesy accorded to the
diplomat rather than a recognition of any official status of the family members themselves’ (F. Supp
1416–​17).
95  Castro (n 89), 362, n 72 states some of the reasons behind underreporting and misreporting in
the US: William G Morris, ‘Constitutional Solutions to the Problem of Abuse of Diplomatic Crime
and Immunity’ (2007–​2008) 36 Hofstra L Rev 601, 608–​11.
12

112 Privileges and Immunities of the Family of the Diplomatic Agent

libraries. It would help if such guides or legislative documents were made available
under a uniform heading and widely distributed in English. In particular, it would
be useful if some observatory of diplomatic practice were to become the universal
depository of such guides and legislative practice in order to allow research of this
type to be carried out as rigorously as one would wish.
 13

8
The Inviolability of Diplomatic Agents in the
Context of Employment
Lisa Rodgers

1. Introduction

The VCDR sets up a series of immunities for diplomats against criminal, civil, and
administrative jurisdiction. Jurisdiction in relation to employment claims is not
specifically mentioned. The exclusion of provisions relating to the employment
claims of diplomatic staff as against their employers is understandable: these claims
are dealt with (more or less successfully) by international Conventions and domes-
tic statutes on State immunity. The exclusion of any mention of employment jur-
isdiction in relation to the employees of diplomatic agents is more problematic.
Potentially, the diplomatic immunity entrenched in the VCDR covering criminal,
civil, and administrative jurisdiction represents an absolute barrier to those claims,
unless the (private servant) employee can prove that he/​she falls within the ‘com-
mercial’ exception in Article 31(c). This article provides that there is no immunity
for ‘an action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions’.
Personal servants wishing to challenge diplomatic immunity in this way face a
very great number of hurdles. First, there are a set of jurisdictional hurdles which
vary according to the status accorded to the VCDR in domestic law. The trans-
lation of the VCDR into domestic law is not uniform. Where immunity is rec-
ognized, some States have directly incorporated the VCDR into domestic law,
whilst others have sought to recognize the provisions of the VCDR through the
codification of customary international law on immunity. Second, there is often
political interference in claims relating to diplomatic immunity, exemplified by the
ability of the Secretary of State in the UK (in a Foreign and Commonwealth Office
Certificate (FCO)) to determine which person is entitled to immunity. Thirdly, it
is by no means certain that a personal servant will be able to satisfy the relevant
definitions in the VCDR. For example, personal servants have struggled to show
both that their work was a ‘commercial activity’ under Article 31(c) VCDR, or
that their actions were outside of a diplomatic agent’s official functions. Finally,
where a ‘balancing exercise’ has been undertaken between diplomatic immunity

The Inviolability of Diplomatic Agents in the Context of Employment. Lisa Rodgers. © Lisa Rodgers,
2017. Published 2017 by Oxford University Press.
14

114 The Inviolability of Diplomatic Agents in the Context of Employment

and individual rights (and some courts have refused to contemplate this balancing
exercise at all), there have been few instances where the courts have accepted dip-
lomatic immunity as a disproportionate or illegitimate action.
The aim of this chapter is to investigate the VCDR in the context of the case
law on diplomatic immunity and the employment rights of personal servants. It
will start with an investigation of the flexibilities within the VCDR for bringing
employment claims against diplomatic staff, and how these flexibilities have been
interpreted at national level. Next there will be an examination of the interaction
between the VCDR and other international norms in theoretical terms. The chap-
ter will then proceed to consider how that interaction has so far worked itself out
in practice, and the particular challenges raised against diplomatic immunity as a
breach of due process norms. The chapter will then consider the potential of deny-
ing diplomatic immunity on the grounds of a breach of human rights arising in the
context of employment (for example, through forced labour or slavery). Here there
will be an analysis of the recent case law on State immunity ratione materiae as far
as it extends to protect diplomatic staff. The suggestion in this case law is that there
may be personal liability for diplomatic staff involved in the most heinous breaches
of jus cogens norms. Although that jurisdiction currently only extends to a breach
of criminal law, the potential of the decisions in this area to present a way forward
for civil breaches by diplomatic staff in the employment context will be examined.

2.  The Flexibilities within the VCDR and Employment Claims

The most obvious challenge to diplomatic immunity has operated within the bounds
of the ‘commercial’ exception to immunity provided in Article 31(c) VCDR. This
provides that a diplomat is not immune from prosecution for commercial activities
outside a diplomat’s official functions. Domestic workers employed by diplomatic
staff have attempted to show both that the domestic work relationship is ‘commer-
cial’ and also that the act of employment of a domestic private servant is outside
the official functions of the diplomat, in order to persuade the judiciary that their
employment claims should proceed. This section will first consider the arguments
pertaining to the ‘commercial’ nature of the work relationship between a private
servant and their domestic employers and will then consider whether that relation-
ship is outside the diplomatic official functions.
There is no definition under Article 31(c) to enable courts to decide whether the
employment of personal servants would be a commercial relationship or not. The
negotiation history of the VCDR reveals that there was no consensus amongst
the drafting parties on this matter. The Report of the ILC on Diplomatic Intercourse
and Immunities mentioned that commercial activity should be a ‘continuous act’
rather than a single act of commerce, but provided no further definition.1Similarly,

1  Report of the International Law Commission to the General Assembly: Diplomatic Intercourse
and Immunities, Summary of Observations Received from Governments and Conclusions of the
 15

The Flexibilities within the VCDR and Employment Claims 115

at the UN Conference on Diplomatic Intercourse and Immunities there was some

discussion of the nature of a commercial activity and whether that would include
investing in a company or not, but no definitive conclusion was reached.2 As a
result, national courts have been left to interpret the nature of ‘commercial activity’
for the purpose of diplomatic immunity. This interpretation has tended to be nar-
row, and to block the employment claims of domestic workers. A telling example
of this approach is provided in the US case of Talbion v Mufti.3 In this case a
Filipina domestic worker made a number of employment claims against the First
Secretary of the Jordanian Embassy based in Washington. Her claims were blocked
by the court on the grounds of diplomatic immunity. The court held that ‘com-
mercial activity’ in the Article 31(1) exception, ‘does not encompass contractual
relationships for goods and services incidental to the daily life of the diplomat and
family in the receiving State’.4 It ‘relates only to trade or business activity engaged
in for personal profit’.5
It may be argued that such a narrow reading of the definition of commercial
activity in the VCDR in the context of employment claims is unjustified. There
are a number of reasons that have been put forward to support this argument.6
First, in the negotiation history for the VCDR, the stated purpose of the com-
mercial activity exception was to ensure that aggrieved (private) parties should
be able to obtain a remedy where a diplomat has violated the law.7 A ‘purposive’
approach would therefore involve a reading of the VCDR which leant towards
compensation for victims rather than protection of diplomatic immunity (as long
as the activity did not interfere with a diplomat’s official functions). Second, the
activity of domestic workers is, as a matter of fact, considered ‘commercial’ in
other legal settings (for tax purposes for example). Indeed, the sheer scale of the
domestic workers industry and the revenue that it generates means that it does
not make sense to consider domestic work outside of the commercial framework.
Finally, and this relates to the US context particularly, there is no justification
for stating that a commercial activity should only include activity ‘for personal
profit’. This is contrary to the plain language of the VCDR. In any event, there is
an argument that an exploitative diplomatic employer does gain ‘personal profit’
from the employment of domestic workers. For example, financial gains result
from the refusal of exploitative diplomatic employers to grant minimum pay and
minimum employment standards. For all of these reasons, it may be argued that
a wide reading of the provisions of the meaning of commercial activity should be

Special Rapporteur (2 May 1958) UN Doc A/​CN 4/​116, 56 <http://​legal.un.org/​ilc/​documentation/​

english/​a_​cn4_​116.pdf> accessed 10 May 2017.
2  ‘Summary Records of Plenary Meetings and of Meetings of the Committee as a Whole’ UN
Conference on Diplomatic Intercourse and Immunities (2 March–​14 April 1961) UN Doc A/​CONF
20/​14, 21.
3  73 F 3d 535 (4th Cir 1996). 4 ibid 538. 5 ibid 537.
6  Amy Tai, ‘Unlocking the Doors to Justice:  Protecting the Rights and Remedies of Domestic
Workers in the Face of Diplomatic Immunity’ (2007–​08) 16 Journal of Gender, Social Policy and
the Law 175, 192.
7  Report of the Commission (n 1) 56.
16

116 The Inviolability of Diplomatic Agents in the Context of Employment

permitted, to allow a greater number of personal servants to be able to bring their
employment claims.
The second element of the ‘commercial’ exception to diplomatic immunity
requires that the employment of personal servants must be outside the ‘official
functions’ of the diplomat. Article 3(1) VCDR provides a list of general functions
of a diplomatic mission, including ‘representing the sending State in the receiv-
ing State’, and ‘protecting the receiving State in the interests of the sending State’.
Diplomatic employers have sought to argue that the functions in Article 3 should
be broadly interpreted and that they should include those activities which are inci-
dental to diplomatic purposes. This line of argument was pursued in the Talbion
judgment (referred to above). In this case the court held that domestic services
provided to diplomats were ‘not meant to be treated as outside a diplomat’s official
functions’. The court found that services such as ‘dry cleaning’ and ‘domestic help’
were ‘incidental to daily life’ for a diplomat and therefore part of the scope of a
diplomat’s immunity.8
More recently however, (some) courts have sought to distinguish the Talbion
judgment on the basis that these comments were obiter and were not justified by
supporting argument.9 Indeed, in a number of jurisdictions there has been an
increased willingness to consider that the employment of personal servants is out-
side a diplomat’s official functions. In the US case of Park v Shin,10 the court con-
sidered that although the actions of Shin’s private servant enabled Shin to spend
more time on consular functions, those functions only benefitted the consular
mission indirectly and were therefore not official functions. Of course, this was a
judgment on the provisions of the VCCR, under which consular staff are arguably
given fewer privileges than diplomatic staff under the VCDR. That said, the struc-
ture of the employment relationship between domestic servants and consular staff
is very similar to the structure of the employment relationship between domes-
tic servants and diplomatic staff. From the point of view of justice for domestic
servants, there is no reason why the two situations should be treated differently.11
In the UK jurisdiction, the Talbion judgment has likewise been distinguished.
In Wokuri v Kassam,12 the court referred to the decision in Talbion that domes-
tic services were private acts which were outside official functions. However, the
court argued that the concern in Talbion was the meaning of ‘commercial activity’
in Article 31(1)(c) VCDR rather than the definition of official functions for the
purposes of that Article.13 In the Wokuri case, the court was unable to find that
the domestic worker’s claims arose out of acts performed in the exercise of her
employer’s functions as a member of a diplomatic mission.
Although this willingness to view the work of domestic servants as outside offi-
cial functions has been helpful to some domestic servants, the problem is that it
can be difficult to reconcile these decisions with the need to prove that domestic

8  Talbion (n 3) 539.
9  Mr Jarallah Al-​Malki, Mrs Al-​Malki v Ms Cherrylyn Reyes, Ms Titin Suyadi [2013] WL 5338237.
10  313 F 3d 1138. 11  Tai (n 6) 187. 12  [2012] EWHC 105.
13  ibid para 26.
 17

The Flexibilities within the VCDR and Employment Claims 117

work is a ‘commercial’ function. If, as decided in Park or Wokuri, the employ-

ment of diplomatic staff is private and so outside official functions, then it will be
rather contradictory to argue that the nature of domestic work is not private but
commercial for the purposes of Article 31(1)(c) VCDR. Indeed, this very contra-
diction was discussed in the case of Al-​Malki. In the Employment Appeal Tribunal
judgment in this case, the court was willing to accept that the actions of domestic
workers may be outside the official functions of a diplomat. The court referred to
the reasoning in the Wokuri case and also the later case of Abusabib v Taddese.14 It
initially approved the position in Abusabib that there can be a ‘spectrum’ of activi-
ties performed by employees of diplomatic staff, some of which may be closely
related or ancillary to diplomatic functions (as defined in Article 3(1) VCDR) and
some of which may not. On that scale, the employment of a domestic worker,
‘who performed no task outside the diplomat’s home, had such little connection
with the functions of the diplomat’s mission that it would fall at the end of the
spectrum which was outside the proper scope of official functions’.15 However,
the court was unwilling to find that the employment of a domestic worker was a
‘commercial activity’. The court stated that the pursuit of a profession or a com-
mercial activity with a view of profit was an action with a purely ‘private interest’.
Furthermore, it was unable to find that the employment of a personal servant was
purely private and referred to the fact that the actions of the domestic servant were
incidental to official functions.16 As a result, ‘a plea of diplomatic immunity would
be bound to be given effect’.17
Indeed, the whole discussion of the ‘spectrum’ of activities performed by
employees of diplomatic staff was abandoned when the case reached the Court of
Appeal. The focus was on the intention of the drafters of the Convention when
designing the Article 31(1)(c) exception. It was argued by the Court of Appeal
that the exception was to be interpreted narrowly and was not intended to cover
employment for the provision of domestic services at the mission. Such employ-
ment was not an action relating to any commercial activity undertaken for the
financial benefit of the diplomatic agent. It was ‘still less’ an action relating to an
activity relating to a commercial activity outside the diplomat’s official functions.18
Again, it was stated that the employment of a domestic servant at a mission was
an activity ‘incidental to the daily life of the diplomatic agent’, which enabled that
agent to carry out his/​her official functions. The Court argued that a broader inter-
pretation of the commercial exception under Article 31(1)(c) to include domestic
service contracts would ‘frustrate the principle of reciprocity and the importance
of diplomatic immunity’.19 It would dramatically restrict the field of operation for
diplomatic agents in respect of the making of any contract for the supply of goods

14  UK/​EAT/​424/​11. 15  ibid para 31. 16  Al-​Malki (n 9) para 12.

17  ibid para 22.
18  Mr Jarallah Al-​Malki, Mrs Al-​Malki v Ms Cherrylyn Reyes, Ms Titin Suyadi [2015] EWCA Civ
32, para 19.
19  ibid para 29.
18

118 The Inviolability of Diplomatic Agents in the Context of Employment

or services. This restriction would not have been intended by the drafters of the
Convention.
The employment of domestic workers by diplomatic staff has also been consid-
ered in cases concerning the operation of residual immunity under the VCDR.
Residual immunity is found in Article 39(2) VCDR which provides that when a
diplomatic post comes to an end, diplomatic privileges also come to an end (or at
least does so at the moment the diplomat leaves the country). However, that does
not apply ‘in respect of acts performed by such a person in the exercise of his func-
tions as a member of the mission’. In that instance, immunity continues to subsist.
The question has therefore arisen whether diplomatic immunity subsists in relation
to liability for acts related to the employment of domestic staff once diplomatic staff
have left their post. This point was considered in the American case of Swarna.20
In this case, it was stated that Article 39(2) applies a ‘functional immunity’ which
applies to a former diplomat’s ‘official acts’ but not ‘private acts’.21 In the Swarna
case, it was stated that official acts included acts directly related to the functions
of a mission in Article 3 VCDR, and to the ‘employment of subordinates at the
diplomatic mission’. Residual immunity did not extend to claims arising from
the employment of a personal domestic servant, as that employment was ‘com-
pletely peripheral to the official’s diplomatic duties’. This decision was followed
in Baoanan v Baja,22 which concerned a number of claims by a personal servant
against the permanent representative of the Philippines to the United Nations. In
the Baoanan case, the court made it clear that liability under the residual immunity
provisions under Article 39(2) should be considered separately to the provisions
under Article 31(1)(c) VCDR. Even if a diplomatic agent’s conduct is deemed to
fall outside the commercial activity exception for the purposes of main immunity,
residual immunity may still be defeated. The court found that domestic employ-
ment is not inherently an act performed in the exercise of diplomatic functions, nor
is it inherently related to the functions of a diplomatic mission in Article 3 VCDR.
Swarna and Baoanan have been heralded as a significant step forward in the
relaxation of diplomatic immunity provisions. There are now situations in which
it is very likely that domestic servants will be able to claim against diplomatic
staff within the scope of the VCDR. This effectively ends absolute immunity for
diplomatic staff and brings this more in line with the international position of
‘restrictive immunity’ in relation to State and consular immunity. Domestic serv-
ants simply have to wait for the end of a diplomatic posting before filing suit.23 In
relation to residual immunity, it does appear that there is a level of international
agreement that domestic servants can bring claims relating to their employment
against diplomatic staff.24 However, the structure of diplomatic immunity still

20  Vishranthamma Swarna v Badar Al-​Awadi, Halal Muhammed Al-​Shaitan, and State of Kuwait
607 F. Supp. 2d 509 (SDNY 2009).
21 ibid 519. 22  627 F. Supp. 2 d 155 (SDNY 2009).
23 Martina Vandenberg and Alexandra Levy, ‘Human Trafficking and Diplomatic Immunity:
Impunity No More’ (2012) 7 Intercultural Human Rights Law Review 77, 91.
24  For examples see the decisions in Wokuri (n 12)  and Abusabib (n 14), which both cite the
Swarna case.
 19

Interaction of Diplomatic Immunity and Other International Norms 119

leaves the majority of domestic workers employed by diplomatic staff without

recourse to justice. As a result, claims by diplomatic staff have been attempted on
the basis that, even where (main) diplomatic immunity applies, that immunity
should be set aside as a result of a breach of international norms which stand above
immunity either as a matter of substance (jus cogens norms) or procedure (the right
to a fair trial). Section 3 will consider the theoretical basis of this challenge, whilst
section 4 will consider the practical attempts to challenge diplomatic immunity on
a procedural norm basis. Section 5 will analyse the potential of the challenge to
diplomatic immunity on the basis of jus cogens norms.

3.  The Interaction of Diplomatic Immunity and Other

International Norms

The interaction between diplomatic immunity and other international and or pro-
cedural norms is extremely complex, both theoretically and practically. The the-
oretical complexities of this interaction will be considered in this section; sections
4 and 5 will consider the practical questions surrounding the interpretation of
that theory. In theoretical terms, it falls first to decide the normative hierarchy
or relationship between diplomatic immunity and other norms of international
law. This is very difficult to determine because it depends to a certain extent on
how the aims of diplomatic immunity generally and the VCDR more specific-
ally are viewed. On the one hand, diplomatic immunity may be viewed as stem-
ming from the wider concept of State immunity (representative theory). This tends
towards a more restrictive approach to the immunity doctrine. On the other hand,
diplomatic immunity may be seen as functionally necessary and so requiring an
absolute procedural bar to other claims (at any level). Second, the relationship
between diplomatic immunity and other international norms is constantly evolv-
ing. For example, in the context of the interaction between diplomatic immunity
and human rights, there have been significant developments at the international
level which directly impact on the immunity question. At international level, there
has been an increased willingness to hold to account perpetrators of serious human
rights violations, which arguably changes the viability of international law which
provides absolute (criminal and civil) immunity for diplomatic staff.25
The interaction of diplomatic immunity with other international norms strongly
depends on the question as to which theory is considered to form the basis of dip-
lomatic immunity.26 The representative character theory suggests that as diplo-
matic immunity essentially exists to further sovereign aims, diplomatic immunity
law should proceed in line with the law on State immunity. This is interesting

25 Craig Barker, ‘Negotiating the Complex Interface between State Immunity and Human
Rights:  An Analysis of the International Court of Justice Decision in Germany v Italy’ (2013) 15
International Community Law Review 415, 421.
26  On the three principal theories that have been invoked as bases for diplomatic immunity, see
Chapter 1.
120

120 The Inviolability of Diplomatic Agents in the Context of Employment

because recently there has been a change in the international community’s stance
on State immunity. There is now an increased willingness to consider State immu-
nity restrictively rather than as an absolute procedural bar. Moreover, there is no
reason under the representative theory why diplomats should have immunity out-
side of official acts. This is for two reasons. First, under the State immunity doc-
trine, States only have immunity for acts of a sovereign nature (acts jure imperii).27
There is no immunity for acts which are not sovereign because they can be carried
out by private actors (acts jure gestionis). Second, if diplomats are direct representa-
tives of the State, then there is arguably no justification for immunity outside those
acts which are considered official by that State. There is also no real explanation
under this theory why members of the diplomatic household should have immu-
nity.28 The argument from the second theory—​that of functional necessity—​may
be more difficult to reconcile with restrictive notions of immunity. The functional
necessity doctrine possibly leads to the argument that a State should safeguard
immunity privileges absolutely as a matter of international law. There are two
streams to this argument. The first stream is that of reciprocity. In the United States
particularly, the government has regularly intervened to preclude domestic workers
from litigating their claims on the basis that to do otherwise would put American
foreign servants at risk.29 The second stream is that of personal inviolability. The
argument proceeds on the basis that diplomats have the ‘right’ to protection as
they carry out their mission.30 This right is a personal right akin to that afforded
under human rights instruments. This argument implies a certain detachment of
the law of diplomatic immunity from that of State immunity. Whilst the latter is
concerned with the concept of equality between States, the former is a personal
right which extends well beyond that granted to a State.31
The argument that diplomatic immunity is a personal right is very controver-
sial. For a start it has no real basis in international law as reflected in its instru-
ments. The preamble to the VCDR specifically states that diplomatic immunity
is ‘not to benefit individuals’. Furthermore, if diplomatic immunity is considered
a personal right (with the status of a human right), then this has the potential to
be considered over and above other human rights norms. It can act to prevent a
proper balancing exercise between diplomatic and other human rights. On the
other hand, adopting the representative theory has the potential to allow a greater
consideration of other competing human rights or jus cogens norms. The argument
may proceed that diplomats are only properly representing the State when acting
within the ambit of State authority. As no State has the authority to act in contra-
vention of jus cogens norms as a matter of international law (jus cogens norms are
peremptory and cannot be the subject of derogation), acts of diplomats which

27  Craig Barker, The Protection of Diplomatic Personnel (Ashgate, Aldershot 2006) 82.
28  Derrick Howard, ‘Twenty-​First Century Slavery:  Reconciling Diplomatic Immunity and the
Rule of Law in the Obama Era’ (2012–​13) 3 (1) Alabama Civil Rights and Civil Liberties Law Review
121, 140.
29  Tai (n 6) 184. 30  See the judgment of the court in Al-​Malki (n 9).
31  Hazel Fox, The Law of State Immunity (2nd edn, OUP, Oxford 2008) 75.
 12

Application of Diplomatic Immunity as an Absolute Bar to Claims 121

conflict with peremptory norms of international law are necessarily acts outside
official State functions and should not be protected by immunity. These arguments
will be considered in more detail in section 6.

4.  The Application of Diplomatic Immunity as an

Absolute Bar to Claims

In practical terms, there has been a reluctance amongst domestic courts to move
beyond an ‘absolute’ approach to diplomatic immunity (as functional necessity) in
the context of employment. There are a number of reasons for this. One sticking
point is the traditional role of domestic courts in the field of international law.
Whilst some courts may regard their role as extending to the application of inter-
national law where that conflicts with domestic statute, many courts remain wed-
ded to the idea that the role of the domestic court is to apply domestic law, albeit as
far as possible consistently with international rules.32 This has led to a literal inter-
pretation of domestic statutes to uphold diplomatic immunity. A good example
is provided in the case of Sabbithi in the US.33 This case concerned claims against
a diplomat for breach of provisions of the Victims of Trafficking and Violence
Protection Act 2000 (TVPA). The Claimants argued (inter alia) that their claims
under the TVPA should be given precedence over diplomatic immunity as a result
not only of their severity, but also because the TVPA was enacted after the VCDR.
The court disagreed. It noted that the TVPA was silent on the issue of the immu-
nity of diplomats and the insertion of a clause denying immunity in breach of the
TVPA would be beyond the court’s powers. Furthermore, the court was reluctant
to read a statute so as to modify the United States Treaty obligations in the absence
of a clear statement from Congress.34
The Claimants in Sabbathi also raised the argument that the defendant’s acts of
trafficking violated jus cogens norms of slavery and slavery-​like practices which were
relevant to the employment situation. The court did not specifically reject the idea
that prohibition of slavery could be a jus cogens norm, and there is strong evidence
to suggest that the prohibition is considered of the highest political, social, and
legal importance. It appears in the main human rights instruments and is arguably
a feature of customary international law.35 However, the court rejected the argu-
ment that in international law there is a ‘normative hierarchy’ between diplomatic

32  Barker (n 25) 420. 33  Sabbithi v Saleh 605 F. Supp. 2d 122 (DDC 2009).
34 ibid 130.
35  Article 4 Universal Declaration of Human Rights provides that ‘no one shall be held in slav-
ery; slavery and involuntary servitude shall be prohibited’, Universal Declaration of Human Rights
(adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR). Article 4 European Convention on
Human Rights echoes this. Article 4 (1) provides that ‘no one shall be held in slavery or servitude’, and
article 4(2) states that ‘No one shall be required to perform forced or compulsory labour’, Convention
for the Protection of Human Rights and Fundamental Freedoms (adopted 4 April 1950, entered into
force 3 September 1953) 213 UNTS 221 (European Convention on Human Rights, as amended)
(ECHR).
12

122 The Inviolability of Diplomatic Agents in the Context of Employment

immunity and jus cogens norms which requires jus cogens norms to be respected. It
stated that there was ‘no evidence that the international community has come to
recognize a jus cogens exception to diplomatic immunity’.36 The court recognized
that this position could create injustice for Claimants, but reiterated the position
that ‘this court will not create new exceptions to the longstanding policy of dip-
lomatic immunity’ and ‘any action or proceeding brought against an individual
who is entitled to immunity with respect to such action or proceeding under the
Convention [VCDR] . . . shall be dismissed’.37 This position was also followed by
the UK Court of Appeal in the case of Al-​Malki. Here the question was whether
the fact that the employees had been the subject of trafficking (prohibited in inter-
national law) could act to deny the diplomatic Respondents’ immunity. The Court
found that it had not been established that international rules relating to traffick-
ing took precedence over rules relating to immunity. As a result, the Respondent’s
diplomatic immunity in relation to the Claimant’s employment claims was upheld.
There have also been other grounds upon which (employment) claims against
diplomatic staff have been rejected. Some courts have rejected the notion that the
nature of the offence alleged against the diplomatic agent (including whether it
reaches the level of a jus cogens rule) is relevant to a consideration of a claim of
diplomatic immunity at all. The argument proceeds on the basis that diplomatic
immunity is a ‘procedural’ bar to claims and so cannot be balanced with any sub-
stantive rule. The operation of diplomatic immunity does not contradict any (jus
cogens) prohibition but merely ‘diverts any breach of it to a different method of
settlement’.38 However, this is not necessarily the case in relation to other ‘due
process’ rights (such as the right to a fair trial). These kinds of rules can be engaged
by the instigation of a ‘procedural bar’. This position was considered in the UK
case of Al-​Malki. In Al-​Malki, the Claimants challenged diplomatic immunity on
the basis that it denied them the right to access a court under Article 6 of the
European Convention on Human Rights (ECHR). On the one hand, the recog-
nition of diplomatic immunity as a ‘procedural bar’ was a distinct advantage to
the Claimants because the court was forced to accept that Article 6 was thereby
engaged. However, that advantage was diluted by the Court’s approach to the
‘balancing act’ required under that Article. In the Al-​Malki case the relationship
between diplomatic immunity and Article 6 was considered in relation to two
factors: whether diplomatic immunity could be considered a legitimate aim and
whether the restriction of access to a court on the basis of diplomatic immunity
was proportionate. The Court of Appeal found that the recognition of diplomatic
immunity did pursue a legitimate aim:  that of ‘complying with a State’s inter-
national law obligations to prevent hindrance to the diplomat in performing his
functions’.39 The application of diplomatic immunity in this context was also pro-
portionate and thereby Article 6 did not apply in this case. The court referred to
the position that ‘restrictions on the right of access to court which reflect generally

36  Sabbathi (n 33) 129. 37 ibid 130. 38  Fox (n 31) 525.

39  Al-​Malki (n 18) para 68.
 123

The Potential of Challenges to State Immunity (Ratione Materiae) 123

recognised rules of public international law’ would generally be considered pro-

portionate. Diplomatic immunity was a generally recognized rule of international
law and the ECHR should therefore be interpreted so far as possible in conformity
with it.40
It is true that this case did not provide a positive outcome for the Claimants.
However, it did reveal the fact that where immunity is considered a procedural bar,
it can be challenged by other procedural or due process norms (such as Article 6
ECHR). This effectively allows the relationship between immunity and due pro-
cess to be an interpretive exercise.41 It could be argued that the mere fact that
diplomatic immunity is entered into the balancing exercise with other due process
norms is a good starting point for a reconsideration of the absolute nature of diplo-
matic immunity. Indeed, in other areas, the absolute nature of immunity is already
being eroded to a certain extent. One area of note is that of State immunity. In
this area Claimants have been successful in claiming that immunity denies Article
6 rights. The potential of this area of law to cross-​fertilize into diplomatic immu-
nity will be considered in the next section. In particular there will be a discussion
of developments in the area of State immunity ratione materiae. It is argued that
developments in this area may feed into changes to the content of the VCDR,
because the subject matter of the claims is similar: the liability of individual State
agents in violating international norms and domestic regulations. It is argued that
if the law is amended in this area, it makes sense from the point of view of justice
for these changes to be reflected in the law on diplomatic immunity.

5.  The Potential of Challenges to State Immunity

(Ratione Materiae)

In the law on State immunity, the ‘restrictive’ approach has been increasingly
explored both in the academic literature and in the case law relating to employ-
ment rights. The ‘restrictive’ approach has a number of elements. First, in the law
on State immunity at both international and domestic level, restrictions on State
immunity are specifically stated. Article 11 of the UN Convention on Jurisdictional
Immunities of States and their Properties provides that a State does not have
immunity in respect of ‘a proceeding which relates to a contract of employment’
(subject to a number of exceptions listed in that article). This restriction has also
been incorporated domestically. For example in the State Immunity Act 1978, it
is stated that a State is not immune in relation to contracts of employment where
the contract is made in the UK or the work is to be ‘wholly or partly performed
there’.42 The second element of this restrictive approach is the understanding that

40  ibid para 70.

41  Rosanne Van Alebeek, ‘Domestic Courts as Agents of Development of International Immunity
Rules’ (2013) Leiden Journal of International Law 575, 599.
42  State Immunity Act 1978 s 4(1).
124

124 The Inviolability of Diplomatic Agents in the Context of Employment

a State does not have immunity for acts jure gestionis (States performing functions
which could just as easily be performed by private parties). State immunity exists
only for acts jure imperii (strictly sovereign acts). On this basis immunity does not
extend to employment contracts. The third element of this restrictive approach
is in relation to the application of State immunity as against other international
norms. In relation to due process rights (such as the right to a fair trial under
Article 6 ECHR) it has been held that although State immunity can be a legitimate
aim (as a result of the need to ensure comity and good relations between States),
the proportionality element of the balancing exercise must be considered carefully.
Where the function of an employee does not interfere with sovereign interests,
State immunity should be denied.43
It is clear that there is no current appetite for taking the same restrictive approach
to diplomatic immunity that has been taken in relation to State immunity. A num-
ber of reasons have been cited for this. First, the aims of each doctrine are stated
to be different. Whilst sovereign immunity exists to promote comity and good
relations between States, diplomatic immunity is there to ensure the efficient per-
formance of the functions of diplomatic missions and the personal protection of
individuals involved in those missions.44 Second, there is evidence of a change in
attitude towards the restrictions imposed by State immunity in the international
community.45 Such a change is not in evidence in relation to diplomatic immu-
nity. However, the question arises whether there might be a closer relationship
between developments in the area of State immunity ratione materiae and diplo-
matic immunity. State immunity ratione materiae concerns the immunity of high
ranking officials as agents of the State for breaches of criminal and civil law. This
kind of immunity (ratione materiae) is therefore personal rather than State-​wide. It
may thus represent a potential cross-​over function between (pure) State immunity
and diplomatic immunity which may lead to more restrictive understandings of
diplomatic immunity and an increase in jurisdiction for employment claims. Of
course, care must be taken in any such analysis and it is only one possible avenue
which may be explored to assist employment claimants. An alternative, and per-
haps more direct, approach (changing the terms of the VCDR) will be considered
in section 6.
It is accepted as a matter of customary international law that State immunity
offers individual employees of a foreign State protection in respect of acts under-
taken on behalf of that State.46 Recent decisions demonstrate that the protection
of individuals under the doctrine of State immunity ratione materiae is broadly
applied, but that ‘State practice is in a state of flux in this area’.47 The position
was examined in detail in the recent case of Jones, appealed from the UK House of

43  Fogarty v United Kingdom (2002) EHRR 12; Cudak v Lithuania (2010) EHRR 15.
44  Al-​Malki (n 18) para 73.
45  For example, the changes in the rules of international law relating to State immunity in the UN
Convention on the Jurisdictional Immunities of States and their Property (adopted 2 December 2004,
not yet in force), A/​Res/​59/​38.
46  Jones v United Kingdom (2014) 59 EHRR 1. 47  ibid para 214.
 125

The Potential of Challenges to State Immunity (Ratione Materiae) 125

Lords to the European Court of Human Rights (ECtHR).48 This case concerned
allegations of torture and unlawful detainment against one of Saudi Arabia’s offi-
cials, Lieutenant Colonel Abdul Aziz. Saudi Arabia claimed State immunity ratione
materiae in relation to these acts. The Claimant asserted that the imposition of
State immunity ratione materiae breached his right to a fair trial under Article 6
ECHR. The House of Lords in the UK found that State immunity ratione materiae
acted as a procedural bar to all claims, and its operation precluded an examination
of any of the merits of the claim. The Claimant challenged this decision in the
ECtHR, but the ECtHR agreed with the House of Lords’ position. It referred
in detail to the case of Al-​Adsani,49 which was a decision of the Grand Chamber
on very similar facts. In Al-​Adsani it was held that the grant of immunity ratione
materiae pursued a legitimate aim for the purposes of the balancing exercise under
Article 6:  the aim was the maintenance of comity and good relations between
States. The action was also proportionate because it reflected generally accepted
principles of international law. The court found that ‘Just as the right of access to
court is an inherent part of the fair trial guarantee in that Article, so some restric-
tions on access must likewise be regarded as inherent, an example being those
limitations generally accepted by the community of nations as part of the doctrine
of State immunity.’50 The ECtHR stated that the question in the Jones case was
whether there had been an evolution in accepted international standards since Al-​
Adsani to warrant an exception to immunity in the case of torture. The ECtHR
found that the bulk of the authority still pointed to State immunity being upheld
in cases of torture. However, it did recognize that ‘in light of the developments
currently underway in this area of public international law, this is a matter which
needs to be kept under review by Contracting States’.51
The evolution of the public international law rules in allowing exceptions to
State immunity ratione materiae is instructive for our purposes, as they might
suggest cross-​over developments in the area of diplomatic immunity. One point
of interest, is that individuals only benefit from State immunity ratione materiae
where the impugned acts are within the scope of official functions. In some juris-
dictions it has been argued that action in breach of jus cogens norms can never be
carried out in an official capacity and so can never benefit from State immunity.
For example in the case of Samantar52 the Court of Appeals of the United States
found that ‘We conclude that, under international and domestic law, officials from
other countries are not entitled to foreign official immunity for jus cogens viola-
tions, even if the acts were performed in the defendant’s official capacity.’53 This
case is now being appealed to the Supreme Court. There is further support for
this ‘normative hierarchy’ between jus cogens norms and State immunity law in
the comments of the dissenting judge in the case of Al-​Adsani.54 In that case,

48  ibid para 203. 49  (2002) 34 EHRR 11. 50  ibid para 56.

51  Jones (n 46) para 215. 52  Samantar v Yousef (2010) 130 S Ct 2278.
53  Cited in Jones (n 46) para 125.
54  State immunity is a right jus dispositivum (a right which can be modified by international con-
sensus) and therefore does not reach jus cogens level (fundamental rights of international law from
which States cannot derogate). The effect is that a breach of jus cogens denies immunity.
126

126 The Inviolability of Diplomatic Agents in the Context of Employment

Judge Loucadis (in dissent) explained that ‘once it is accepted that the prohibition
of torture is a rule of international law prevailing over State immunity rules, no
such immunity can be invoked in respect of any judicial proceedings whose object
is the attribution of legal responsibility to any person for any act of torture’.55
Furthermore, in relation to the question of whether all action by State personnel is
official, it has been recognized for some time that in the context of crimes at least,
there can be dual liability of both States and individuals. This is reflected in the
Draft Articles on States Responsibility, which provide that rules on attribution are
without prejudice to the question of individual responsibility under international
law of any person acting on behalf of the State.56
In the context of civil liability (including liability for employment claims), there
has traditionally been more reluctance to find that civil elements are either a mat-
ter of jus cogens or a matter of personal liability. There is however some suggestion
that even this is changing. In his dissenting judgment in Jones, Judge Kalaydjieva
stated that he found it difficult to accept the differences between civil and crim-
inal jurisdiction in questions of State immunity.57 He suggested that there was no
justification for the accepted position that civil proceedings against State officials
involve a greater interference in the internal affairs of a foreign State than criminal
proceedings and therefore could not invoke individual responsibility. For grave
actions, personal responsibility should be available in both civil and criminal juris-
dictions.58 There is also considerable support for the argument that there can be
universal civil as well as criminal jurisdiction. In the Jones case, the Claimants
referred to the Convention against Torture which provides for universal civil jur-
isdiction in Article 14. That Article states that each party to the Convention ‘shall
ensure in its legal system that the victim of an act of torture obtains redress, and
has an enforceable right to fair and adequate compensation, including the means
for as full a rehabilitation as possible’.
Finally, there is the suggestion that due process itself should become a jus cogens
norm. This suggestion was made by Judge Cançado Trinidade in the Jurisdictional
Immunities case of 2012.59 This case was not in fact a case of State immunity
ratione materiae, but of pure State immunity. It concerned the validity of a claim
of State immunity made by Germany in respect of violations of international
humanitarian law, including forced labour. Italy claimed that an exception to State
immunity existed where there had been international crimes committed in breach

55  Al-​Adsani (n 49) para O-​V2.

56  Article 58 Draft Articles on State Responsibility for Internationally Wrongful Acts adopted by
the International Law Commission at its fifty-​third session (2001), ILC Yearbook 2001 vol II Pt 2,
30, art 58.
57  Jones (n 46) OII-​5.
58  In this case, Judge Kalaydjieva doubted the correctness of the reliance of the majority on Al-​
Adsani. He argued that this case could be distinguished on the basis that the questions were ‘limited
to state immunity and did not concern the compatibility of extending it to named stated officials’.
Jones (n 46) OII-​7.
59  Case Concerning Jurisdictional Immunities of the State (Germany v Italy; Greece intervening)
(Judgment) (International Court of Justice, General List No 143, 3 February 2012).
 127

The Potential of Challenges to State Immunity (Ratione Materiae) 127

of jus cogens norms. The ICJ’s approach pursued the (traditional) line that custom-
ary international law did not treat a State’s entitlement to immunity as dependent
on the gravity of the impugned act. State immunity was a procedural bar and
confined to determining whether the courts of one State could have jurisdiction
over another. Trinidade disagreed with both of those assertions. He argued that the
gravity of breaches of human rights and international law, and the jus cogens sta-
tus of those rights determined the operation of State immunity. Furthermore, he
argued that the ‘fundamental character of the right of access to justice’ supported
the removal of immunity in situations of grave violations of human rights: it is a
true ‘droit au Droit . . . . [w]‌e are here, in sum, in the domain of jus cogens’.60
The developments in this area are arguably relevant in terms of potential direc-
tions in the law on diplomatic immunity. A central concern under the law of State
immunity ratione materiae is that immunity exists only so far as a State official’s
actions come within official functions. This same concern resonates in the law
on diplomatic immunity. In the context of diplomatic immunity, personal serv-
ants of diplomatic staff have sought to argue that their work comes outside the
official functions of the diplomatic mission, with some limited success. Courts
have accepted that the work is outside these official functions on the basis of the
nature of the work relationship (which is private). The difficulty has been that
this conflicts with the argument that domestic work is a commercial/​private mat-
ter. However, comments and arguments made in the development of the law on
State immunity ratione materiae potentially suggest a solution to this conundrum.
As part of the development of this law, there have arisen suggestions that when
officials commit breaches of the law considered of fundamental importance in
international terms (in the employment context this may include forced labour
or slavery), diplomatic action is always outside official functions. For these jus
cogens breaches, the liability is personal and not linked to the State. Indeed, it
has also been suggested that the public/​private distinction between official/​public
and non-​official/​private acts is unhelpful in the context of immunity and can be
abolished. The fact that the liability (for jus cogens breaches) is personal does not
mean that it should be considered ‘private’ and outside public liability or concern.
Such breaches are fundamentally a matter of public concern. As Judge Trinidade
stated in Jurisdictional Immunities: ‘crimes against humanity are not to be consid-
ered . . . private acts: they are crimes’. They ‘cannot simply be removed or thrown
into oblivion by reliance on (State) immunity’.61
The comments about the status of due process law are also interesting in the
context of diplomatic immunity. In the current law on diplomatic immunity, it
appears fairly easy to override due process considerations. The argument proceeds
on the basis that the functional necessity of diplomatic action means that diplo-
mats must be inviolable. This inviolability creates a procedural bar against com-
peting claims which is not affected by the seriousness of the allegations against
the impugned diplomat. In this context any balancing act between the provisions

60  ibid para 217. 61  ibid para 129.

128

128 The Inviolability of Diplomatic Agents in the Context of Employment

of diplomatic immunity and due process norms is bound to favour diplomatic
immunity. However, if due process and the right to a fair trial gain the status of jus
cogens as a matter of international law, then the balancing process with diplomatic
immunity must be reconsidered. As a jus cogens norm, it would arguably override
diplomatic immunity, which, despite assertions of its absolute operation, has not
been suggested as a jus cogens norm in its own right. In the corresponding balance,
it would at least allow the substantive nature of the proceedings to be consid-
ered and a more detailed and fairer balancing process to take place. Any blanket
immunity would definitely be in breach of due process generally and Article 6
specifically.
Of course, although the comments and suggestions made in the context of State
immunity ratione materiae are interesting in terms of the possible development of
diplomatic immunity law, these comments are obiter and are not yet a matter of
judicial precedent. Arguably they do not reflect the agreed international position
on State immunity law. Furthermore, the translation of progressive ideas to the
field of diplomatic immunity is potentially difficult in the face of the persistence of
the conservative position in the VCDR. It is difficult to argue that the international
community’s stance on immunity is changing when there have been no significant
amendments to the VCDR as the international Convention of relevance in this
field since its inception. Perhaps then, the biggest potential for Claimants in terms
of gaining jurisdiction in employment matters is to make changes to the specific
terms of the VCDR. The next section considers where changes can potentially be
made in the VCDR to reflect a fairer balance between the protection of diplomatic
staff and the employment claims of their personal servants.

6.  Changes to the VCDR

Although the preamble to the VCDR states that the purpose of the privileges and
functions of the diplomatic mission are not to provide personal benefit but to fur-
ther the purposes of the mission, the current wording of the VCDR arguably does
provide for this benefit to the detriment of functional responsibility. The inviol-
ability of diplomatic agents (Article 29 VCDR) is put above the functions of the
mission. Arguably the absence of a link between functional necessity and inviol-
ability needs to be challenged because it leads to the diplomatic person having
immunity for matters which are not, in fact, necessary to the mission. This more
nuanced understanding could be reflected at the outset in Article 29. A possible
reading might be: ‘The person of a diplomatic agent shall be inviolable for the dur-
ation of the diplomatic mission and for all diplomatic functions.’
Diplomatic functions are currently listed in a very generalist way in Article 3(1)
VCDR. There are no specific exceptions in Article 3 to these provisions or exam-
ples of instances which would be outside official functions. It appears that this
promotes an absolutist approach to functional necessity. It could be made clear
at this stage that there are certain actions of diplomatic agents which would not
 129

Conclusions 129

promote good relations between States and which could not be considered a func-
tional necessity. A  clause could be inserted to the effect that any act which is a
violation of norms of international law will not be considered within the official
functions of the mission. No State which is part of the international community
could authorize such action.
More specifically, there should be a clause incorporated into the VCDR which
deals specifically with violations in employment matters, just as there is in the
UN Convention on Jurisdictional Immunities. A new provision should be inserted
into Article 31 which states that the employment of domestic servants is outside
a diplomat’s official functions. It should be stated in this section that as a result
of this employment being outside official functions, the diplomat is liable for any
breaches of it which are recognized by international law (in due course this could
be extended to breaches of national employment law provisions, but this is per-
haps a step too far given current international feeling). There could then be a non-​
exclusive list of those actions which would be in breach of international human
rights and jus cogens norms. In the context of employment these norms might
include for example: slavery, forced servitude, and forced labour. For complete-
ness’ sake, it could be stated that the domestic servants of diplomatic staff should
not be prevented from having jurisdiction to bring their claims in relation to such
matters.
There is also the argument that Article 37 VCDR should also be amended in
the light of a restrictive approach to the scope of official functions. It should be
made clear in this Article that its provision does not extend to the employment of
domestic servants, or to any breach of law connected to the employment of domes-
tic servants committed by members of the diplomatic household. Such actions do
not further the official functions of the mission, or the development of good inter-
national relations between States.

7. Conclusions

The ‘inviolability’ of domestic agents has traditionally been founded on two main
premises. The first premise is that diplomatic agents are State representatives, and
are entitled to the privileges granted more widely to the State. This protection
serves not only personal but also international ends. The second premise is that
diplomatic agents are entitled to ‘functional’ immunity; they require the freedom
to carry out their diplomatic mission efficiently. Both of these understandings of
the nature of diplomatic immunity are reflected in the VCDR. The ‘representa-
tive character’ function of inviolability is reflected in the second and third para-
graphs of the VCDR’s preamble. The ‘functional necessity’ element of immunity is
reflected in paragraph four of the preamble. However, there are indications that the
‘functional necessity’ version of the need for diplomatic immunity was the domin-
ant mode of thinking in the VCDR’s drafting. One reference of particular import-
ance in the context of the employment is the ‘commercial’ exception to diplomatic
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130 The Inviolability of Diplomatic Agents in the Context of Employment

immunity. This requires that immunity is removed where a diplomat carries out a
commercial or professional activity outside official functions. There are also other
references in the VCDR to the extension of protection only in relation to official
functions, with Article 28 being another example.
So far, there is nothing to suggest that there is any conflict between the ‘rep-
resentative character’ function of diplomatic immunity and the functional neces-
sity approach. Diplomatic personnel are representatives of the State and so their
immunity extends so far as they are conducting official functions. In fact, however,
the functional necessity argument has been attached to inviolability to the extent
that there is very little (or nothing) that the diplomatic agent conducts during his
diplomatic employment which can extend beyond the ‘official’. The suggestion
is that the diplomatic agent is personally inviolable, and that inviolability is not
sensitive to the nature (or seriousness) of the acts carried out by the diplomat.
This argument tends to result in absolutist notions of immunity. These absolutist
notions are in conflict with the understanding of the extent of immunity under
representative character ideals. On this argument there are limits to diplomatic
immunity, just as there are limits to State immunity. Certain (State or diplomatic)
acts are private acts and so are outside the scope of protection. Other acts may be
in breach of international law which means that they are not subject to State or
diplomatic immunity. In particular diplomatic actions which are in breach of jus
cogens norms are deemed not to be subject to immunity because jus cogens norms
operate over and above other norms of international law.
This tension and conflict is very interesting and important in the context of
employment law. In the context of employment law, the absolutist position has
been taken almost exclusively. On the one hand, this is perhaps understandable
because employment claims have generally not been considered fundamental rights
of international standing in the same way as other rights. This is of course itself
subject to challenge,62 but there is arguably currently insufficient international
acceptance of the status of ‘normal’ employment rights to make this a viable excep-
tion to immunity in its own right. That said, there are two situations in which
important international (jus cogens) norms are potentially engaged. The first is in
relation to the fundamental right to a fair trial, and the second is the fundamental
right to freedom from slavery, forced labour, or servitude. Both norms have been
raised to try to override diplomatic immunity. So far, no authoritative decisions
have been made in favour of upholding these jus cogens norms in the employment
relationship. They have been blocked by a number of arguments pertaining to the
inviolability of diplomatic staff in conjunction with their ‘official functions’.
In this chapter, it is argued that there is no reason in principle why this should
continue to be the case, particularly given developments in other areas of inter-
national law (the law on State immunity ratione materiae). Inviolability should not

62 There is a wealth of literature on the relationship between employment rights and funda-
mental (human) rights. See eg Judy Fudge, ‘The New Discourse of Labour Rights: From Social to
Fundamental Rights?’ (2007) 29 (1) Comparative Labor Law and Policy Journal 29.
 13

Conclusions 131

be seen as a personal right applied absolutely against jus cogens norms. The scope of
official functions should be interpreted narrowly and should not extend to actions
which breach international standards of law. Moreover, the international commu-
nity should consider changing the terms of the VCDR to reflect the vulnerability
of employees of diplomatic agents. It is hoped that this would help to prevent the
current injustices to which the personal servants of diplomatic staff are both poten-
tially and actually subject. It is also hoped that greater certainty at international
level about the relationship between jus cogens norms and diplomatic immunity
would lead to more progressive interactions between States and the positive devel-
opment of international relations as a whole.
132

9
Private Domestic Staff
A Risk Group on the Fringe of the Convention

Wolfgang Spadinger

The case of the abuse of a private domestic worker by a member of the Indian
Consulate General (Devyani Khobragade) in New  York in 2013 has drawn the
attention of the world’s media on the topic of Private Domestic Staff (PDS). How
is it possible that in the twenty-​first century labour exploitation and abusive treat-
ment of workers is tolerated in diplomatic households and to which extent does
the legal framework including the VCDR condone or even favour such behaviour?
And what are the challenges for States, which want to stay close to the letter of the
convention, and adhere to the provisions, in order to prevent abuse and labour
exploitation of PDS?
In many countries, cultural traditions suggest that families of a certain layer of
society keep domestic staff at their homes. This group usually includes diplomats,
who take their domestic workers to their foreign postings to provide continuation
of their living conditions in the best possible way. Modern patterns of family life
mean that parents, who both work or single mothers have to rely on a domestic
worker permanently living in their residence to take care of infants or children.
The contribution of domestic staff to the well-​being of diplomatic families and
therefore indirectly also to the functioning of foreign missions is considerable,
host countries all over the world are confronted with the fact that there is an
incontestable demand for PDS in the diplomatic community. Globalization, and
the increasing power and significance of emerging non-​European countries often
cherishing the tradition of employing PDS have contributed to increased signifi-
cance of this particular group.

1.  Defining the Group

The VCDR has addressed this need and established a distinct category for pri-
vate domestic staff (in the language of 1961 still called ‘private servant’) in Article
1(h) VCDR. This category is different from the ‘members of the service staff ’ in

Private Domestic Staff: A Risk Group on the Fringe of the Convention. Wolfgang Spadinger. © Wolfgang
Spadinger, 2017. Published 2017 by Oxford University Press.
 13

Defining the Group 133

Article 1(g), who are employed by headquarters authorities of the sending State
and posted at missions abroad for a limited period of time.
As a matter of fact, the notion of the ‘private servant’ as set out in Article 1(h)
VCDR, a faithful personal employee of a diplomat, following him into every
remote corner of the world for a lifetime does no longer entirely correspond to
today’s realities. The model has given way to a variety of employment patterns
for domestic workers in diplomatic households including service staff contracts
(Article 1(g) VCDR), PDS contracts, or local work contracts with a diplomatic
mission. Receiving States therefore have the task to assess the character and the
status of a person doing housework in a diplomatic residence. There are, basically,
three possible categories:

1.1 Service staff (Article 1(g) VCDR)

Members of the service staff would have a strong link both to the sending State
and to the official business of the mission. They would typically either work in
the office of a diplomatic mission, eg as drivers, cleaners, or handymen or at the
residence of the Ambassador. It is decisive that they are mandated to work in their
position by a central authority of the sending State. Usually they would have the
same nationality as the sending State, although Article 1 VCDR does not specif-
ically say so.

1.2 PDS (private servant, Article 1(h) VCDR)

In contrast to service staff, PDS do have a contractual relationship with an
employer, who himself is a mission member. This can be the head of mission or
any other diplomat or mission member, whom the receiving State permits to bring
and employ domestic staff. Concerning citizenship, Article 1(h) VCDR specific-
ally sets out that PDS may have a nationality different from the sending State of
their employer.

1.3. Local  staff
This category is not contained in the VCDR at all, as local staff are only con-
tracted by a diplomatic mission and have no direct ties to the central authorities
of the sending State. Local staff need to be resident in the sending State; in some
countries, a work permit is required as well. They do not hold any privileges and
immunities (an exception may arise from a benign interpretation of Article 38(2)
VCDR). While in general the share of local staff by comparison to posted person-
nel is clearly on the rise, the prohibition in most countries on the ‘import’ of local
staff, sets limits on the use of local staff for domestic work.
The categorization, which has to be made at the beginning of domestic staff ’s
work in a diplomatic household, is crucial and has ample consequences for the legal
framework applicable to the contractual relationship with the employer and to the
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134 Private Domestic Staff

possibilities of the authorities of the receiving State to monitor the fulfilment of
the obligation by the employer and interference in case of non-​compliance. With
service staff, the possibilities of the receiving State are limited. Remuneration is
deemed to be an internal affair between the sending State and the staff member.
It is generally assumed that they are on the payroll of the central authorities of
the sending State as is the case with administrative and technical staff. Also social
security questions are supposed to be dealt with within the internal context of
the sending State. The specific provisions on social security in Article 32
VCDR apply only to PDS but not to service staff. In terms of privileges, Article 37
VCDR completely exempts service staff from paying income taxes in the receiving
State. With the notable exception of immunity in criminal cases the protection of
service staff (and consequently of their employment contracts) is tantamount to
that of administrative and technical staff.
Local staff, on the other end of the spectrum, do fully fall under the applicability
of the local legislation of the receiving State. All taxes have to be paid on income
derived from the employment, and social security provisions have to be respected.
As far as a local staff member is concerned, the authorities of the receiving State can
obtain full access to the individual (interrogation, testimony, and even detention
is possible without direct violation of the VCDR), to his residence (unless it is in a
household shared with a privileged person) and financial assets (bank account). On
the other hand, sending States and their diplomatic missions are under no obliga-
tion to notify to the receiving State the employment of their local staff. They are
not registered in any specific way by the Ministry of Foreign Affairs (MFA), and
there is no possibility of the receiving State to question the modalities of employ-
ment or the treatment of local staff, unless there is a specific complaint insinuating
a violation of local legislation based on poor compliance with Article 41 VCDR.
In Austria the applicability of national labour law is limited to the very gen-
eral provisions of the Civil Code (ABGB). In addition, binding provisions of cer-
tain labour related Acts eg on workers’ protection, maximum hours, or annual
leave apply, whereas there is no stipulation of a minimum wage. Minimum wages
in Austria are contained in so-​called collective bargaining agreements between
employer groups (eg handicraft or trade) and the trade unions of the respective
employees. Embassies do not fall into any employer group. Therefore no minimum
wage is applicable in a strict sense, although it is widely recognized that remuner-
ation has to be above the minimum of personal sustainability (at the time of writ-
ing 857 Euro/​month).
It is characteristic for local staff that they possess permission to reside in the
receiving State. Thus, they are less dependent on the sending State or the diplo-
matic mission, where they are employed. In case of difficulties in the labour rela-
tionship with the employer, local staff tend to exploit all possible options including
the termination of the employment with a view to seek other work opportunities.
PDS and service staff do not have this choice. Their work contracts are strictly
pegged to the employer and once the relationship is broken, the employer reports
the termination of the employment and de-​registers the domestic worker at the
MFA. The de-​registration leads to the loss of the residence permit. In Austria, the
 135

Defining the Group 135

legitimation card regulation of 2010 foresees that once the criteria for holding a
‘diplomatic’ ID-​card (such ID-​cards are issued to all categories of mission staff
according to the VCDR and VCCR) do no longer apply, the card is declared null
and void.
The general challenge for the MFA of a receiving State is to prevent that domes-
tic workers are brought and registered under an inappropriate categorization,
where there is less possibility of control and it is easier to exploit them. A typical
pattern would be the attempt to register PDS as service staff. This would give
the employer the advantage of not being bound by the minimum wage decree.
Further, the social security provisions of Article 33 VCDR would not apply to
this employment and the possibility of the MFA to monitor the well-​being of the
domestic worker is severely curtailed. In this context it should be kept in mind
that generally the VCDR in Article 7 provides for general freedom of appoint-
ment by the sending State. Challenging or discussing a diplomatic mission’s cat-
egorization of a staff member by the receiving State is a risky operation, because
the sending State is legally in the stronger position and, of course, this mere
‘technical’ dispute might escalate and infringe the bilateral relations between the
two countries.
The receiving State is therefore well advised to elaborate on the criteria for the
distinction between the two groups and communicate these criteria to all missions
affected in a transparent and effective way. The Austrian MFA would permit ser-
vice staff only as domestic workers in residences of Ambassadors or heads of career
consulates. For all other diplomats and mission staff members, the only possibility
to employ domestic workers is to hire PDS. But it is even more important to verify
that the service staff is really posted abroad by the MFA or any equivalent central
authority of the sending State. The risk that embassies are recruiting domestic
workers independently and without knowledge and permission of headquarters
is evident. In the context of the VCDR, ‘being posted’ requires a mandate by the
sending State, meaning its central authorities and not its diplomatic missions. The
crucial distinction is the act of sending the domestic worker to his/​her post. The
Austrian MFA therefore requests as a general policy that for the registration of ser-
vice staff, a verbal note by the central authorities posting the person to a mission
abroad is indispensable. A verbal note by the same authority only declaring that a
domestic worker will be taking up employment at a diplomatic mission will not
be considered sufficient. The service staff ’s nationality, as already touched upon,
is also a strong indicator. Experience has shown that central authorities have very
strong tendencies to post only their own nationals abroad, so the posting and the
nationality requirement often coincides.
Another pattern that has recently emerged, is to present a PDS as a child of the
employer for registration at the receiving State’s MFA. It is typical for this scenario
that a pair of working parents or a single mother would have a couple of infants or
small children and a significantly older sibling. This (in most cases, female) young-
ster has been made part of the family by express adoption of the adolescent or
similar procedures. It is clear that this modus operandi requires careful preparation
and involves a strong will by the employer to make ongoing labour exploitation a
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136 Private Domestic Staff

part of his family life. Challenging this form of deceit is extremely difficult, as it
also touches upon issues of cross-​cultural family life and traditions.

2.  The VCDR Framework for PDS

The VCDR is relatively open on who is entitled to employ PDS. Article 11(2)
VCDR allows receiving States to refuse to accept officials of a particular category
within similar bounds and on a non-​discriminative basis. This provision is dif-
ferent from the limits that can be set under Article 11(1) VCDR, which provide
a tool to tailor mission sizes according to the needs of a particular mission. As a
consequence, a number of receiving States have used Article 11(2) VCDR to peg
the employment of PDS to certain criteria (eg rank and function of the employer).
Whether the main reason is to curb immigration and to keep PDS numbers down
altogether, whether it is a reflection of considering PDS a rank privilege or whether
this is an attempt to reduce the risk of labour exploitation of PDS by junior diplo-
mats, is not clear and not easily deductible from the circular notes of the countries
concerned.
In March 2014 Belgium for instance circulated a verbal note which limited the
possibility of taking on PDS to heads of diplomatic and career consular missions.
Only one exception was made (for ‘humanitarian cases’). This means a significant
limitation of PDS employment, against the backdrop of one of the largest multi-
lateral diplomatic communities in the world (EU, NATO, and other international
organizations in Brussels) and a constant rise in the numbers of PDS over the last
ten years.
When it comes to privileges and immunities, PDS find themselves again on the
lower end of the social ladder. Article 37(4) VCDR specifies that they shall, if they
are not nationals of or permanently resident in the receiving State, be exempt from
dues and taxes on the emoluments they receive by reasons of their employment. In
other respects, they may enjoy privileges and immunities only to the extent admit-
ted by the receiving State. Exercising jurisdiction over PDS is pegged, however, to
non-​interference with the functions of the mission.
Denza deducts from this provision and from Article 38(2) VCDR (which deals
with PDS who are nationals of the receiving State) that PDS of that group categor-
ically have no privileges and immunities. If Article 37(4) VCDR is applicable, they
have only two privileges which are properly regarded as privileges of the employer:1
exemption from tax on wages and exemption from social security provisions. In
the light of this, it becomes clear, why PDS are seen as a group rather on the fringe
of the convention than one of the five different categories of mission members
set out in Article 1 VCDR. Attributing the existing PDS privileges, as small they
might be, to the employer contributes to the assumption that the employer is really
the master of the ‘servant’ and has unlimited power over his domestic worker.

1  Eileen Denza, Diplomatic Law (3rd edn, OUP, Oxford 2008) 411.

 137

The Social Insurance Issue 137

With other scholars2 I believe, however, that PDS do have privileges and immu-
nities of their own, although they are limited. The reason why their degree of
privileges and immunities is significantly lower than that of service staff, is the
recognition that PDS do not operate in the realm of the exercise of governmental
authority but as domestic workers for individuals, who themselves are protected by
the convention because of their functions for the mission.

3.  The Social Insurance Issue

The most specific reference to PDS is contained in Article 33 VCDR on the exemp-
tion from social security provisions. While Article 33(1) VCDR stipulates a gen-
eral exemption for posted personnel (singling out the diplomatic agent, but made
applicable to administrative and technical staff and service staff by virtue of Article
37 VCDR), this exemption is limited in the case of PDS through Article 33(2)
VCDR. According to the text of the convention, non-​nationals and non-​residents
of the receiving State shall only be exempted, if ‘they are covered by the social
security provisions which may be in force in the sending State or a third State’.
Basically, two possibilities exist to interpret this qualification. The PDS might
be covered by the social security provisions in the country of origin or nationality
in a general way. Evidence for the availability of this option is provided through
those amendments proposed during the codification process which took as their
basis the similar regulation in the ILC’s draft articles on consular intercourse and
immunities.3 The reference in Article 33(5) to existing and future social security
agreements also points in this direction.
The second interpretation would deduct that the social security provisions apply
to the actual employment, ie the job that the domestic worker is performing in
the household of the diplomatic employer. An argument in favour of this inter-
pretation is the fact that the VCDR arguably presupposes that PDS need to be
included in some social insurance, be it by the receiving State, the sending State (of
the employer), or a third State (the country of nationality of the PDS). A situation
should be avoided in which PDS are not insured at all, which might be the case
if they are just generally covered but the specific job profile does not entail active
participation in the social security system.
Also, social security as such is a term which is not defined in the VCDR. If ref-
erence is made to the use of the term by the International Labour Organization
(ILO), a relatively complex pattern might emerge, as the list of components is
rather comprehensive. Most public social security systems include health and acci-
dent insurance, unemployment insurance, and contributions to a pension fund.

2  Niklas Wagner, Holger Raasch, and Thomas Pröbstl, Wiener Übereinkommen über diplomatische
Beziehungen vom 18. April 1961, Kommentar für die Praxis (Berlin, Berliner Wissenschaftsverlag
2007) 329.
3  UN Docs A/​CONF/​C 1/​L265; A/​CONF 20/​14, 182, 193.
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138 Private Domestic Staff

Typically, health and accident insurance is of key importance for PDS because
illness and work-​related injuries are at least as common in their cases as for any-
body else working in the hospitality sector. Since statistically the kitchen is the
most dangerous room in a household, the risk of injury of PDS, whose tasks most
likely include preparing meals, is a given. Unemployment insurance—​on the other
hand—​is a insurance which in the case of PDS will most likely be paid in vain.
As their residence title is pegged to the work contract with the employer, they are
not technically on the labour market, they are not entitled to start working any-
where but in another diplomatic household, and they will not qualify to ever reap
unemployment benefits. Contributions to pension funds pose a similar problem.
Many social security systems contain a minimum period of countable contribu-
tions, in Austria, for example, fifteen years, in order to start pension disbursements
when the beneficiary reaches retirement age. Within the system of the VCDR, and
the (still dominant) pattern that PDS follow their employer to various postings,
pension fund contributions will not be sufficient to trigger benefits for PDS.
In Austria, and maybe in other countries as well, national legislation has
turned its back to holders of privileges and immunities. Article 5 of the Austrian
Social Security Act 1961 excludes all persons working for an ‘extraterritorial’
employer: they are exempted from the applicability of the Act, as long as they are
not Austrian citizens. This applies to diplomats and technical and administrative
staff, as well as to service staff and PDS. Indeed, natural persons enjoying diplo-
matic privileges and immunities are deemed ‘extraterritorial’ by the bureaucracy of
the social security administration. Exceptions to this exclusion exist where a bilat-
eral social security agreement applies.
As the interrelationship between the provisions of Article 33 VCDR and its
interpretation and various regulations emanating from the national sphere are
complex and do not facilitate effective implementation, a number of countries,
including Germany4 and Belgium, have adopted a policy of demanding health
insurance for PDS with a national or a renowned international provider and an
insurance policy which includes the territory of the receiving State with adequate
coverage. Recently, Austria followed this example and made it possible to obtain
health and accident insurance either with the public social security institution or
with a private sector insurance company.

4.  Prevention of Exploitation and Abuse

Developing a transparent and fair system for honouring the VCDR and enabling
the employment of PDS on the one hand and providing an effective tool against
misuse on the other, is a challenging task and needs comprehensive policy ele-
ments to complement existing international and national legislation. In contrast
to the general relations between employer and employee governed by collective

4  Wagner, Raasch, and Pröbstl (n 2) 284.

 139

Prevention of Exploitation and Abuse 139

bargaining agreements, in Austria, which has a quite important number of around

200 PDS, there is the lucky situation of a binding minimum wage decree for
domestic workers. In contrast to the collective bargaining agreements mentioned
earlier, it is applicable regardless of the employer group.
Upon the start of employment, rights and duties need to be specified in a writ-
ten service agreement. A model agreement is provided by the MFA. This agree-
ment needs to be signed by the employer and employee. Only adults (persons
over the age of eighteen) are permitted to work as PDS in Austria. PDS have to
be working full time and need to live in a common household with the employer.
Remuneration depends on the minimum wage. Wages shall be paid monthly,
by the last day of the calendar month. As of January 2013, the minimum wage for
domestic staff in Austria is 1.100 Euro paid for full-​time employment. All wages
have to be paid into an Austrian bank account of which the PDS is the only holder.
Thus, both the employee and the employer can at any point in time prove that they
have paid or received the money. The bank statements and proof of remuneration
transfer must be kept and presented annually for the renewal of the PDS ID-​card.
There has to be a room for the exclusive and private use of the PDS complying
with health care and construction regulations, and featuring appropriate furnish-
ings, including a lockable cupboard. PDS must be given healthy and sufficient food.
Working hours, including standby duty, must not exceed the maximum laid
down in the minimum wage decree. If excess hours are necessary in exceptional
cases, the employee is entitled to additional hours of rest or will be given extra
money to the amount specified in the minimum wage decree. Cutting short any
breaks or an interruption of the night’s rest is permitted only when the employee’s
services during such times are necessary for urgent, non-​deferrable, or unavoidable
reasons.
Employees are entitled to a leisure period beginning not later than 2 pm on one
working day of each week and one work-​free Sunday every other week. This leisure
period starts at the end of the working hours on Saturday and must extend to the
start of work on Monday. Austrian legal holidays have to be respected with regards
to PDS too. In addition, the employee must be granted the time required to meet
her religious duties. Such time is agreed between the employer and employee. The
employee is further entitled to take leave for thirty-​five calendar days per year. The
full amount of remuneration is due for the holiday period.
PDS need to be registered by a public social security institution or by a pri-
vate health insurance company. If the employer pays the insurance premium,
he is entitled to deduct a certain amount from the PDS’ wages. If the PDS is
prevented from working on account of sickness, she is entitled to the remuner-
ation for a period of at least six weeks. The employment relationship must not
be terminated due to sickness or an accident at work. For pregnant employees
additional restrictions apply. An absolute ban on work is imposed for the period
starting eight weeks prior to the expected delivery date and ending eight weeks
after giving birth.
The employment contract may be terminated at any time by giving notice.
The period of notice is two weeks. If a trial period is agreed, the employment
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140 Private Domestic Staff

relationship can be terminated by either party at any time effective immediately.
A trial period may not last for longer than one week. PDS may be dismissed with
immediate effect only on very important grounds. Such grounds include disloyalty,
persistent neglect of the employee’s duties, untrustworthiness, and violence against
the employer. Upon termination of the employment relationship, the employer is
obliged, at her cost, to give the employee a written reference (‘Dienstzeugnis’) on
the duration and type of service rendered.
In terms of eligibility on the employer side, foreign PDS can be brought into
Austria if the employer is a diplomat, or career consul, or a senior official of an
international organization. With the exception of heads of diplomatic missions or
career consulates, only one person per household may be employed.
Other countries, especially those with large diplomatic communities due to the
presence of headquarters of an international organization, have developed similar
protection mechanisms for PDS. In Switzerland, a 1998 directive of the MFA and
the 2011 Private Household Employees Ordinance regulate the working condi-
tions of the around 400 PDS in Geneva and Berne. Additional obligations include
the duty of the employer to find PDS in the Swiss labour market before bringing
PDS in from abroad, and the requirement of all PDS to be able to communicate
in English, French, German, Italian, Portuguese, or Spanish. In order to free PDS
from dependency on a single employer, an Employment Registration Desk has
been established in Geneva.
Belgium requires the use of a standard work contract set out by the MFA for
all PDS. On the arrival of PDS in Brussels, interviews with PDS, often in a group
setting are conducted. Further, visa applications from prospective PDS are scru-
tinized at the respective embassies, so there are means of control even before they
get permission to enter the country. More countries are expected to follow this
example. The OSCE has embarked on a series of workshops to coordinate a com-
mon position and to sensitize relevant actors in four workshops in Geneva, Kiev,
The Hague, and Brussels. The seminars brought together senior MFA staff from all
OSCE member states. As a result, nine countries including Canada, Ireland, and
Poland have adopted new measures to protect PDS, and a practitioners’ handbook
was published by the OSCE secretariat in 2014.5
The experience of recent years has shown that although the vast majority of dip-
lomatic employers treat their PDS in a correct way, there are cases of abuse, labour
exploitation, and in isolated cases even patterns of physical violence and trafficking
in human beings. It is evident that in the contractual relationship between a dip-
lomatic employer and a PDS, the employer is in a clearly stronger position. Their
main advantage and leverage lies in the fact that the PDS depends on the working
relationship with respect to her residence title as well. Leaving the employer means
to return to the country from which they came. In addition, the gap between the

5 Organization for Security and Co-​operation in Europe/​Office of the Special Representative

and Co-​ordinator for Combating Trafficking in Human Beings: Handbook: How to Prevent Human
Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers
(Wien, 2014).
 14

Prevention of Exploitation and Abuse 141

minimum wages in western countries (eg 1.100 Euro in Austria, 1.200 CHF in
Switzerland) and average wages for unskilled labour in typical countries of origin
(around 50 Euro in Indonesia or the Philippines), may prompt employers to offer
less pay and drive PDS to compromise on the remuneration. There is also a gap in
sophistication between employers who are educated and versatile professionals and
prepared to work in all corners of the world, and PDS who sometimes can hardly
read and write, have a very limited command of foreign languages, and are some-
times out of their own country for the first time.
The most common scenarios of exploitation are withholding pay or parts of the
remuneration and excessive working hours. The risk of underpayment is particu-
larly high when wages are paid in cash against receipt, or when the counter-​value is
transferred to the family of the PDS by the employer. This is why Austria has intro-
duced mandatory payment of wages into a bank account in the sole name of the
PDS. Monitoring the working hours of PDS is extremely difficult, as diplomatic
employers are protected by the immunities of Article 30(1) VCDR. If there are
complaints by PDS, they usually deplore working hours from early morning until
late at night. While it can be affirmed that diplomatic household chores, especially
if there is a lot of entertaining of guests, are time consuming, the widespread con-
cept that the live-​in PDS is considered part of the family, plays with the children,
and accompanies the family of the employer virtually everywhere, makes it next to
impossible to judge what is working time and what is not.
Abusive working relationships are most commonly also characterized by psycho-
logical pressure and verbal abuse. The latter is likely to exceed the occasional telling
off of the domestic worker for an error committed or a task forgotten. Instead, it is
systematic and aspires to convey the message that the PDS is unworthy in general
terms, and has no rights in the receiving State. With no proper information of
their own, PDS are, in view of the tremendous difference in social status, inclined
to believe what is said to them. Hence intimidation by the employer has become
an effective tool to make PDS submissive.
Prevention measures and national regulations and policies complementing the
VCDR therefore need to be accompanied by monitoring. Countries, where labour
exploitation of PDS is an issue have therefore introduced the requirement of mak-
ing each domestic worker appear at the MFA at the beginning of their work for
the employer. On this occasion, a short interview is conducted by a protocol offi-
cer. In Austria, this procedure is repeated each year on the occasion of the renewal
of the PDS’ identity cards. In this context, the bank statements of PDS have to
be submitted and are checked for absence of circumvention patterns. In order to
strengthen PDS and to increase their self-​esteem and autonomy, the MFA and the
Home Office organize specialized briefings for PDS once a year. Further, informa-
tion material is disseminated on Lateinamerikanische exilierte Frauen Österreich
(LEFÖ), a non-​governmental organization (NGO) which has been designated
as the official intervention centre for victims of trafficking in women in Austria.
LEFÖ, which offers psychosocial help, advice, and counselling for its clients, also
runs a women’s shelter where female victims of trafficking, including domestic
servitude, are protected from their abusive exploiters. In 2014, six PDS fled from
142

142 Private Domestic Staff

their diplomatic employers and sought help and shelter with LEFÖ. This number
by itself shows that even with a relatively high level of prevention and monitoring
measures, labour exploitation is very difficult to eradicate.

5.  When Cases Go to Court

When a case of exploitation of a PDS is detected and reported to the MFA, a pro-
cedure is put in place to assess the actual working and living conditions of the PDS
in the diplomatic household. This is a process which also involves prompting the
mission or the organization of which the employer is a member or an official to
comment. At the end of this assessment a criminal and a civil component of the
case usually emerges.
On the basis of the findings of the police investigations (which, at this stage, is
limited by the declarations of the PDS), the criminal component will consist of
the suspicion of a criminal offence, which is brought to the attention of the pub-
lic prosecutor. This might be trafficking in human beings, fraud, assault, dan-
gerous threat, or duress, all punishable under the Austrian Penal Code (StGB).
The prosecutor’s office determines whether the employer may be prosecuted.
According to the Articles 31(1) and 37(2) VCDR, diplomats and technical and
administrative staff enjoy immunity from criminal jurisdiction. Therefore after
a determination of the status of the perpetrator, the prosecutor would suspend
criminal proceedings according to Article 197 of the Austrian Code of Criminal
Procedure (StPO). However, it is possible to ask the sending State if it wishes to
waive diplomatic immunity, or—​depending on the gravity of the case—​to even
request that immunity is waived by the sending State. According to the practice
of the US State Department the response to such request is linked to the sub-
sequent introduction of a procedure under Article 9 VCDR (‘Waive or Leave’).
If the criminal procedure is suspended for the time being and the diplomat or
member of the administrative and technical staff remains in his post, the question
arises as to what happens with the proceedings, once the employer is de-​registered
after the termination of his assignment. Art 39(2) VCDR stipulates that privileges
and immunities expire when the functions of a person enjoying them have come
to an end. However they will subsist with respect to acts performed as a member of
the mission. Thus the crucial question would be, if the employment and the work
of the PDS is ‘in the exercise of his function’. In light of the multiple tasks that
PDS have to fulfil—​ranging from cleaning and washing to the preparation of food
for the employer, his family and guests and taking care of the children—​a generally
correct answer to this question is hard to find. An Ambassador or a senior diplo-
mat who has to fulfil many entertainment functions and has to host receptions
and dinners in order to expand his network and to complement his duty might be
covered by the ongoing functional immunity of this provision, a Third Secretary
with a family of six, or an Attaché who is a single mother and who make use of
PDS first and foremost as caretaker of the children, might not. In most cases, the
PDS will be working to assist both the official and the private life segments of the
 143

When Cases Go to Court 143

employer, thereby constituting an obstacle to a clear-​cut determination on the sub-

sistence of his immunities after the end of his posting.
A general observation of case law in various countries shows that the traditional
approach is conservative rather than innovative. There is a tendency to be generous
with regard to the establishment of immunities resulting in lack of jurisdiction by
the court. However, in a PDS case in early 2014 the Vienna Labour Court con-
firmed, for the first time ever, that the immunity of a junior diplomat had ended
with the termination of his posting. But even then, further prosecution is difficult.
Only the most serious of the above-​mentioned criminal cases would trigger inter-
national cooperation between authorities and make a warrant or extradition pos-
sible. In case of cross-​postings the employer might also be protected by immunities
he enjoys in his new receiving State.
If cases of abuse concern employers who enjoy privileges and immunities in
their capacity as career consuls, consular officers, or officials of an international
organization, the question of immunity for the criminal offence is a different one.
While the provisions regarding PDS in the VCCR are tantamount to those in the
VCDR (eg classification criteria, social insurance), the immunities of the career
consul are limited on the basis of functional necessity. Article 41(1) VCCR sets out
that consular officers may only be arrested or detained because of a grave crime and
pursuant to a decision by the competent judicial authority. Furthermore, immu-
nity from criminal jurisdiction is strictly limited to acts carried out in performance
of consular functions. The immunities of officials of international organizations
are determined by headquarters agreements which each single organization has
concluded with the host country. As a basic principle, executive representatives
of the organization or ‘senior officials’ enjoy privileges and immunities as bilateral
diplomats (eg Section 38 UN Headquarters Agreement).6 A majority of regular
staff members enjoy fewer privileges and immunity, usually summarized in an art-
icle of the Headquarters Agreement. For instance, Section 37(a) UN Headquarters
Agreement foresees immunity from legal process of any kind in respect of acts
performed by staff members in their official capacity. Employment of PDS would
generally not be assumed to fall under the official capacity of an official of an inter-
national organization.
In the Khobragade case mentioned at the beginning of this chapter, the employer
of a PDS who had allegedly mistreated her, held the position of a Deputy Consul
General of India in New York, when she was arrested for felony on the basis of
a number of serious federal indictment allegations such as visa fraud, seizure of
the PDS passport, and illegal wages. As Khobragade enjoyed only the immunities
of the VCCR and not full diplomatic immunities under the VCDR, detention
and arrest by US law enforcement agencies was legally correct. Later, when she
was released and while the prosecutor prepared the indictment, she was quickly
transferred and reassigned to the multilateral mission to the UN in New York by

6  Agreement between the Republic of Austria and United Nations Regarding the Seat of the United
Nations in Vienna, Law Gazette (BGBl) Nr 99/​1998.
14

144 Private Domestic Staff

her sending State. From the moment of her registration in the new capacity, she
began to enjoy full diplomatic immunity according to Article 31 VCDR. When
the indictment was finally received by the competent New York criminal court, the
court had to acknowledge that diplomatic immunity made it impossible to make
the employer stand trial.
With the development of the concept of human rights in its contemporary
guise, the question of access to justice for PDS becomes more and more import-
ant. It is therefore significant, especially with regard to the private law aspects of
these situations, that several countries, especially those with large diplomatic com-
munities have embarked on introducing out-​of-​court mechanisms to resolve and
settle work-​related conflicts between PDS and their employers by arbitration and
mediation.
In this respect Switzerland has pioneered institution building. Following the
installation of WTO headquarters in Geneva in 1995, the Canton of Geneva
established a mediation institution called the Bureau de l’Amiable Compositeur
(BAC). The purpose of this body, which is composed of three former senior inter-
national officials and politicians is to find extra-​judicial solutions in work-​related
disputes between PDS and diplomatic employers. So far the BAC has worked on
around 1,000 cases of which a quarter have resulted in amiable agreements. In
Belgium, the Commissie voor Goede Diensten (a commission for good practices)
was established in 2005. This multidisciplinary commission has been dealing with
labour related conflicts between foreign missions or its diplomatic employees and
their staff, and is not confined to situations involving PDS. This commission has
dealt with a total of 100 cases.
Austria continues to put strong emphasis on prevention, including a policy of
closely monitoring the work relationships of PDS with their employers. Thus,
early detection and intervention of labour exploitation is possible in most cases.
If undue elements were established in the relationship, it is the objective of the
MFA to quantify them in monetary terms. This is done by specifically designated
assessment questionnaires, analysis, and finally by mediation, involving the parties
themselves or their representatives. In 2014, three PDS cases were solved by means
of an out of court settlement, and a total of 10,000 Euros was disbursed to the
PDS involved. Although the capacities of the MFA for mediation are limited, it
turned out that the procedure chosen proved to be effective, on the condition that
the problem is detected and addressed at an early stage.
In summary it has become clear that the VCDR has provided the basis for mak-
ing PDS one of the auxiliary pillars of diplomacy, from 1961 until today. Although
patterns of employment, customs in diplomatic life, and personal and family life-
styles have changed, there is still a justifiable demand for PDS. The VCDR has
made it possible to make PDS operational, but has failed to protect them against
labour exploitation and abuse. It has to be conceded, though, that this problem
was neither on the agenda at the negotiations more than fifty years ago, nor was
it the intention to write a social convention. Therefore the existing provisions of
the convention, which need to be duly respected, have to be complemented by
a mix of national legislation and policy. This network of rules and customs has
 145

When Cases Go to Court 145

to be established and maintained in the knowledge that PDS are the group with
the weakest status in the VCDR and with a view to protecting them against any
abuse. Only if all stakeholders, ranging from foreign missions, international organ-
izations, and the diplomatic employers to the MFA, pertinent NGOs, and the
judiciary, work together to support a well-​balanced policy mix securing adequate
treatment, PDS will be able to continue to make their contribution to the effective
functioning of diplomacy.
146
 147

Part IV
Property Immunity
148
 149

10
The Protection of Public Safety and Human
Life vs the Inviolability of Mission Premises
A Dilemma Faced by the Receiving State

Yinan Bao

The inviolability of mission premises is one of the core provisions in the VCDR.1
Though the inviolability of mission premises has been regarded as the cornerstone
of modern diplomatic relations and one of the best established rules of diplomatic
law,2 it faces controversies and challenges in contemporary State practice. To be
specific, in various situations the absolute inviolability of mission premises that
is stipulated in Article 22(1) of the VCDR conflicts with the protection of public
safety and human life. It can be stated that in the emergency situations caused by
force majeure and criminal activities inside the diplomatic mission, the authorities
of the receiving State will face a dilemma in which they must determine whether
the protection of public safety and human life should override the inviolability of
mission premises.
The major task of this chapter is to critically review Article 22(1) of the VCDR,
as well as to examine emergency situations caused by force majeure and criminal
activities inside mission premises. Particular attention will be paid to the exam-
ination of various justifications that may preclude the receiving State from State
responsibility arising from the breach of its obligation under Article 22(1) of the
VCDR, especially the debate over the applicability of the right of self-​defence. The
author will contend that none of the proposed justifications is able to override
the absolute inviolability of mission premises. Instead of providing a straightfor-
ward solution to the dilemma faced by the receiving State, the author will advise
the authorities of the receiving State to adopt alternative measures to solve the
dilemma.

1  As of May 2016, there are 190 parties to the VCDR.

2  As the ICJ points out in the Tehran Hostages Case: ‘There is no more fundamental prerequisite for
the conduct of relations between States than the inviolability of diplomatic envoys and embassies.’ See
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran)
(Judgment) [1980] ICJ Rep 3, para 38.

The Protection of Public Safety and Human Life vs the Inviolability of Mission Premises: A Dilemma Faced
by the Receiving State. Yinan Bao. © Yinan Bao, 2017. Published 2017 by Oxford University Press.
150

150 Protection of Public Safety vs Inviolability of Mission Premises

1.  The Nature of the Dilemma

1.1 The inviolability of mission premises as stipulated in

Article 22(1) of the VCDR
Generally speaking, mission premises play a dual role in modern diplomatic
practice. In the first place, they serve as the ordinary and major working places
for the diplomatic mission. At the same time, they also represent the sover-
eignty of the sending State and the dignity of its occupiers.3 As such, the sig-
nificance of inviolability in modern diplomatic law was quickly recognized by
scholars as well as in State practice. By the eighteenth century, the inviolability
of mission premises was generally accepted as a solid rule of customary inter-
national law.4 Under the contemporary regime of diplomatic law, the core rules
concerning the inviolability of mission premises are codified in Article 22(1) of
the VCDR.5
With regard to this provision, one crucial point is that the text of Article 22(1)
specifies no explicit exception to the inviolability of mission premises. It is worth
noting that the original draft articles prepared by Special Rapporteur Sandström
did provide that the exception to the general rule of inviolability could exist ‘in
an extreme emergency, in order to eliminate a grave and imminent danger to
human life, public health or property…’.6 During the later discussion in the
ILC, the extent of the inviolability of mission premises attracted two distinct
opinions. The first opinion was that inviolability should always be uncondi-
tional and absolute, as the inviolability of mission premises ‘was a most import-
ant one from the standpoint of relations between sovereign Governments’,7
and as such, any exception to the general rule of inviolability would inevitably

3  The Commentary on the relevant draft articles of the ILC in 1958 mentions that ‘[t]‌he inviolabil-
ity of the mission premises is not the consequence of the inviolability of the head of the mission, but
is an attribute of the sending State by reason of the face that the premises are used as the headquarters
of the mission’. This sentence reveals the relationship between the significant role of mission premises
and their inviolability. See ‘Draft Articles on Diplomatic Intercourse and Immunities’, ILC Yearbook
1958 vol II, 95.
4  Emmerich de Vattel, The Law of Nations or the Principles of Natural Law (CG Fenwick tr, Carnegie
Institution of Washington, Washington 1916) 394; Ivor Roberts (ed), Satow’s Diplomatic Practice (7th
edn, OUP, Oxford 2016) 225, para 13.8.
5  It is worth noting that the inviolability of mission premises has two distinct aspects. In add-
ition to art 22(1) which stipulates immunity from any kind of enforcement action by officials of the
receiving State, there is another aspect of inviolability which requires special protection of the mission
premises. This aspect is stipulated in art 22(2). For the purpose of this chapter, only the aspect of
inviolability contained in art 22(1) will be discussed.
6  Article 12 of the ‘Draft Articles on Diplomatic Intercourse and Immunities’, ILC Yearbook 1955
vol II, 16. Original text in French. The official English translation can be found in UN Doc A/​CN.4/​
91, as cited in Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on the Diplomatic
Relations (4th edn, OUP, Oxford 2016) 118.
7  Comment by Tunkin during the discussion on the ILC’s Draft Articles at the 394th meeting, 9th
session of the ILC, see ILC Yearbook 1957 vol I, 54, para 37.
 15

The Nature of the Dilemma 151

weaken it.8 In contrast, the second opinion followed Sandström’s original pro-
posal which suggested that only conditional inviolability should be conferred
upon the mission premises. According to this opinion, there could be excep-
tions to the general rule of non-​entry of mission premises.9 The ILC considered
both opinions in its ninth and tenth session and concluded that ‘to attempt to
enumerate [exceptions to the general rule of inviolability of mission premises]
would open the door to countless disagreements and might well undermine the
very principle of inviolability’.10 And so, in 1958, the ILC’s final version of the
Commentary asserted that ‘the receiving State is obliged to prevent its agents
from entering the premises for any official purpose whatsoever’.11 During the
1961 Vienna Conference, the same divergence reappeared in the form of pro-
posed amendments. To be specific, the delegates of Mexico proposed that ‘the
head of mission shall cooperate with local authorities in case of fire, epidemic or
other emergency’.12 Though the Mexican amendment does not expressly men-
tion the term ‘exception’, it can be inferred that this proposal requires the diplo-
matic mission to concede its inviolability under such situations, at least through
cooperation. A  second amendment was jointly proposed by the delegates of
Ireland and Japan, which suggested that the inviolability of mission premises
shall not prevent the receiving State from ‘taking measures essential for the pro-
tection of life and property in exceptional circumstances of public emergency
and danger’.13 A third amendment, proposed by the delegate of Spain, specified
that the head of the mission shall grant permission to the local authorities to
enter the mission premises ‘in case of danger to the life or property of subjects
of the receiving State’.14 None of these proposed amendments was successfully
supported by other delegates. As a result, all of them were withdrawn before
further discussions.15 In the end, the provision of Article 22(1) of the VCDR
maintains, without change, the interpretation of the inviolability of mission
premises provided in the Commentary on the Draft Articles. As such, the cor-
rect interpretation of Article 22(1) of the VCDR is that no exception is allowed
to the general rule of inviolability of mission premises.

8  Zourek’s comment at the 456th meeting, tenth session of the ILC, see ILC Yearbook 1958 vol I,
130, para 12. See also Amado’s argument, ILC Yearbook 1957 vol I, 56, para 64 and Pal’s comment,
para 67.
9  See Sir Gerald Fitzmaurice’s initial proposal, ILC Yearbook 1957 vol I, 54, para 33(c).
10  ibid 57, para 71; ILC Yearbook 1958 vol I, 130, para 14.
11  Commentary on the ILC’s Draft Articles (n 3) 95.
12 Ernest L Kerley, ‘Some Aspects of the Vienna Conference on Diplomatic Intercourse and
Immunities’ (1962) 56 AJIL 88, 102; United Nations Conference on Diplomatic Intercourse and
Immunities, Official Records, Vol II (United Nations, New York 1962) 20, UN Doc A/​CONF 20/​C 1/​L
129. See also Kai Bruns, A Cornerstone of Diplomacy: Britain and the Negotiation of the 1961 Vienna
Convention on Diplomatic Relations (Bloomsbury, London 2014) 129.
13  Kerley (n 12) 102; United Nations Conference on Diplomatic Intercourse and Immunities, Official
Records, Vol II (n 12) 24, UN Doc A/​CONF 20/​C 1/​L 163. See also Bruns (n 12) 129.
14  United Nations Conference on Diplomatic Intercourse and Immunities, Official Records, Vol II
(n 12) 25, UN Doc A/​CONF 20/​C 1/​L 168. See also Bruns (n 12) 129.
15  ‘Report of the Committee of the Whole’ UN Doc A/​CONF 20/​L 2, United Nations Conference
on Diplomatic Intercourse and Immunities, Official Records, vol II (n 12), para 106.
152

152 Protection of Public Safety vs Inviolability of Mission Premises

1.2 Emergency situations in which controversy arises

As was pointed out in the above section, though Article 22(1) of the VCDR pro-
vides no exception to the inviolability of mission premises, the original draft articles
prepared by Sandström did list typical emergency situations when the inviolability
of mission premises might be compromised to protect public safety and human
life. In fact, as early as 1932, the Commentary on the Harvard Research Draft
Convention on Diplomatic Privileges and Immunities mentioned the same issue
and provided that:
The draft does not undertake to provide for well-​known exceptions in practice, as when the
premises are on fire or when there is imminent danger that a crime of violence is about to
be perpetrated upon the premises. In such cases it would be absurd to wait for the consent
of a chief of mission in order to obtain entry upon the premises. Like acts of God and force
majeure these are necessarily implied as exceptions to the specific requirement of prior con-
sent for entry.16
Although as of today there is no universally agreed definition of the term ‘pub-
lic safety’ in international law, the concept can be construed as closely linked
with emergency situations and especially closely linked with the protection of
human life, as was proposed in both Sandström’s original draft articles and the
Commentary on the Harvard Draft Convention cited above. Moreover, it is also
recognizable that most emergency situations that involve a threat to public safety
will also involve a threat to human life.
Based on the Commentary on the Harvard Draft Convention and Sandström’s
original draft articles, two distinct kinds of emergency situations can be identi-
fied: emergency situations caused by force majeure and those caused by criminal
activities inside the diplomatic mission. These two kinds of emergency situations
will be examined in the following section.

1.2.1 Emergency situations caused by force majeure

Although by the time of the 1961 Vienna Conference, there had been no textbook
definition of the term ‘force majeure’ available, now an authoritative definition can
be found in Article 23 of the ILC’s Draft Articles on Responsibility of States for
Internationally Wrongful Acts 2001.17 According to this article, the term ‘force
majeure’ is defined as:
[T]‌he occurrence of an irresistible force or of an unforeseen event, beyond the control of
the State, making it materially impossible in the circumstances to perform the obligation.
Based on this definition, several typical emergency situations can be identified as
caused by force majeure, such as: fire, flood, earthquake, volcano eruption, tsunami,

16 League of Nations Committee of the Experts, ‘Harvard Research Draft Convention on

Diplomatic Privileges and Immunities’ (1932) 26 AJIL Sup 15, 52.
17  GAOR 56th Session Sup 10, 43 (hereinafter ‘Draft Articles on State Responsibility’).
 153

The Nature of the Dilemma 153

and epidemic, to list but a few. With regard to the controversy arising from emer-
gency situations caused by force majeure, several points are worth discussing. First,
as was pointed out above, Article 22(1) of the VCDR stipulates that the inviolabil-
ity of mission premises requires that the agents of the receiving State18 shall not
enter the mission premises without securing prior consent from the head of the
mission. It is not clear from the text of this provision whether ‘consent’ shall always
be express. Thus, it may be argued by the receiving State that under an emergency
situation such as a fierce fire, the firefighters should presume that they are author-
ized to enter the mission premises to extinguish the fire and prevent further threat
to public safety and human life. Just as Sen pointed out:
In such an emergency, it may be necessary to take immediate action, and if the envoy can-
not be contacted with a view to obtaining his permission, much damage and even loss of
human life may be caused.19
Indeed, it is highly possible that during emergency situations such as a fierce fire
and catastrophic earthquake, the communication facilities inside the mission
premises may be seriously damaged, or it may even be the case that the head of
the mission himself is wounded. For instance, during the catastrophic earthquake
which happened in Haiti in January 2010, the Taiwanese Ambassador was ser-
iously injured.20 It is therefore impractical for the local rescue teams to secure con-
sent from the Ambassador before entering the mission premises and carrying out
the rescue operation. In such a scenario, the question arises whether the authorities
of the receiving State should be allowed to enter into the mission premises to save
human life including the life of the head of the mission. Should there really be
‘presumed consent’ in this kind of emergency situation? With regard to this issue,
Nahlik once pointed out that
[P]‌roviding for the possibility of a presumed consent, even in exceptional cases only, could
be construed in a way encouraging the authorities of the receiving State to presume the
occurrence of such an exceptional situation. . . . [T]he problem was thus left to the inter-
pretation on the merits of each case whether in a particularly exceptional situation such
consent could be presumed.21

18  According to one authority of diplomatic law, the term ‘agents’ includes those ‘persons clothed
with governmental authority’, namely enforcement officials such as police and judicial officials. See
Eileen Denza, ‘Diplomatic Privileges and Immunities’ in J Craig Barker and John P Grant (eds), The
Harvard Research in International Law: Contemporary Analysis and Appraisal (Fred B Rothman & Co,
New York 2007) 163. Another authority specifies that the term ‘agents’ includes ‘all organs of the
receiving State (members of the armed forces, the police, officials of the tax, employment or customs
administrations, etc)’, and bailiffs. See Bertold F Theeuwes (ed), Diplomatic Law in Belgium (Maklu
Publishers, Antwerpen 2014) 47.
19  Biswanath Sen, A Diplomat’s Handbook of International Law and Practice (3rd edn, Martinus
Nijhoff Publishers, Dordrecht 1988) 113.
20  Taiwan News Staff Writer, ‘Taiwan Ambassador to Haiti Taken to Hospital, Embassy Destroyed’
Taiwan News Online (Taipei, 13 January 2010) <http://​www.etaiwannews.com/​etn/​news_​content.
php?id=1154379> accessed 2 May 2016.
21  Stanislaw E Nahlik, ‘Development of Diplomatic Law: Selected Problems’ (1990) 222 Recueil
des Cours 187, 275.
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154 Protection of Public Safety vs Inviolability of Mission Premises

Furthermore, as Sen contended, presumed consent may also lead to unexpected con-
sequences. For example, the authorities of the receiving State may deliberately create
an emergency due to fire by throwing an incendiary bomb.22 Therefore, it seems that
no presumed consent is allowed under Article 22(1) of the VCDR. Even in emer-
gency situations caused by force majeure, consent by the head of mission is compul-
sory. Obviously, such a conclusion means that express refusal by the head of mission
will make it impossible for the authorities of the receiving State to enter the mission
premises even in emergency caused by force majeure. Unsurprisingly, such a conclu-
sion receives criticism from scholars. For instance, Silva commented that: ‘In these
cases it would be absurd to wait for the consent of the head of mission and the possi-
bility of a refusal would still be more absurd.’23 Nevertheless, the reality is that refusal
by the head of mission is not unheard of. Just as Denza pointed out: ‘There had
been refusals of consent even when fire or yellow fever were raging.’24 On 1 January
1956, a fierce fire happened inside the Soviet embassy in Ottawa. According to the
description of the incident, the Soviet diplomatic staff attempted to put out the fire
themselves even though the Canadian firemen were ready just outside the embassy.
It is reported that it was only after tense negotiations with the Soviet Ambassador
that the firemen were allowed to enter the mission premises and do their job. When
the fire was finally put out after six hours, the embassy building had already been
destroyed by the fire.25 In October 2000, a fierce fire happened in the US embassy
in Moscow. It is reported that the US mission staff managed to extinguish the fire by
themselves.26 In these two cases, it can be implied that when the fire broke out, the
head of mission intentionally did not provide consent of entry and so the firefighters
were not allowed to enter into the mission premises.
The reason why the head of mission usually feels reluctant to give consent of
entry can be explained with the following two infamous incidents. Both involve
the notorious ‘KGB firefighters’ and their successful acquisition of confiden-
tial material from the US embassy in Moscow. On 28 March 1991, when a fire
broke out inside the US embassy in Moscow, a small number of Soviet firefighters
entered the embassy and extinguished the fire. However, it was found later that
four KGB (Soviet security agency) officers had posed as firefighters and had suc-
cessfully ‘pulled out secure telephones and communications equipment as well
as passports and personnel [sic] effects of embassy personnel’.27 This incident

22  Sen (n 19) 113.

23  GE Do Nascimento e Silva, Diplomacy in International Law (AW Sijthoff, Leiden 1972) 96.
24  Denza (n 6) 119.
25  ‘Soviet Embassy Fire’ City of Ottawa <http://ottawa.ca/en/residents/arts-heritage-and-culture/
city-ottawa-archives/exhibitions/witness-change-visions-8> accessed 2 May 2016.
26  US Embassy in Moscow Almost Burned Down’ Pravda Report (14 October 2000) <http://www.
pravdareport.com/news/russia/14-10-2000/37100-0/> accessed 2 May 2016.
27  James Gerstenzang and Don Shannon, ‘KGB Snooped During Embassy Fire’ Los Angeles Times
(Washington 1 May 1991) <http://​articles.latimes.com/​1991-​05-​01/​news/​mn-​1029_​1_​classified-​operations>
accessed 2 May 2016.
 15

The Nature of the Dilemma 155

is almost a replay of a similar event that happened on the night of 27 August

1977.28
What makes the absolute inviolability of mission premises in emergency situa-
tions caused by force majeure more controversial is that similar situations received
different treatment in other international conventions. To be specific, Article
31(2) VCCR 29 provides that: ‘The consent of the head of the consular post may,
however, be assumed in case of fire or other disaster requiring prompt protective
action.’ Likewise, the CSM30 further elaborates on the same issue. According to
Article 25(1):
Such consent may be assumed in case of fire or other disaster that seriously endangers pub-
lic 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.
Whether the provisions in the VCCR and the CSM provide a feasible solution to
the controversies in Article 22(1) of the VCDR is debatable. After all, it must be
emphasized that the nature and significance of the inviolability of consular prem-
ises and special missions are essentially different from those of the mission premises
of permanent diplomatic missions. Considering the aforementioned arguments
and incidents, it can be asserted that inviolability of mission premises should keep
absolute, and force majeure cannot be deemed as a justification to override the
inviolability of mission premises.

1.2.2 Emergency situations caused by criminal activities inside 

the diplomatic mission
Concerning emergency situations caused by criminal activities inside the diplo-
matic mission, one remarkable case is worth noting. That case is the fatal shoot-
ing of policewoman Fletcher in St James’s Square in London on 17 April 1984.
On that day, Fletcher was on duty in St James’s Square to maintain order dur-
ing a peaceful demonstration outside the Libyan People’s Bureau (viz, the Libyan
Embassy). She was killed ‘by shots of automatic gunfire from a window’ of the
Libyan mission premises.31 Subsequently the head of the Libyan diplomatic mis-
sion expressly refused entry by the British police to carry out a search and com-
mence an investigation. The incident was discussed in the Report by the UK
Foreign Affairs Committee several months later. Particularly, the controversy about
whether the inviolability of mission premises can be overridden in emergency situ-
ations caused by criminal activities inside mission premises when public safety and

28  ‘The Embassy Moscow Fire of 1977’ Association for Diplomatic Studies and Training <http://​adst.
org/​2014/​08/​the-​embassy-​moscow-​fire-​of-​1977/​> accessed 2 May 2016.
29  596 UNTS 261, adopted 24 April 1963, entered into force 19 March 1967.
30  1400 UNTS 231, adopted 8 December 1969, entered into force 21 June 1985.
31  Grant V McClanahan, Diplomatic Immunity: Principles, Practices, Problems (Hurst & Company,
London 1989) 5. See also Foreign Affairs Committee (UK), ‘The Abuse of Diplomatic Immunities
and Privileges’ HC Paper 127 (1984–​85) para 74.
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156 Protection of Public Safety vs Inviolability of Mission Premises

human life are in great danger was discussed. The report drafted by the Committee
quoted the argument in Hardy’s Modern Diplomatic Law in which a similar scen-
ario was depicted:
[I]‌t would be a manifest abuse, and indeed an instance of outright foolishness, if, in the event
of . . . a man shooting with a rifle from the window of a mission, the local authorities were not
able to go in and deal with the matter.32
However, for similar reasons to those discussed in the emergency situation caused
by force majeure, Hardy concluded that: ‘[E]‌ven if a mission fails to use its premises
in accordance with legitimate purpose, its inviolability must still be respected by the
receiving State.’33
Sir Francis Vallat agreed with Hardy, and he recalled a similar discussion during
the 1961 Vienna Conference, which concluded that:
[I]‌t was considered that in the interests of international relations there should really be a
protection of embassies, an inviolability of premises, without exception. One of the fears
was if specific exceptions were made in the Convention this would give a certain power
of appreciation to the receiving State which it was thought might lead to trouble and be
undesirable.34
The report also commented on another controversy:  whether the right of self-​
defence can be invoked against the inviolability of the mission premises in emer-
gency situations when public safety and human life are in great danger. The
report examined various opinions from scholars and concluded that the right of
self-​defence ‘could not have acted as a lawful basis for the forcible entry of the
Bureau premises’.35 The conclusion of the UK Foreign Affairs Committee was
later endorsed by the UK Government’s White Paper.36 Nevertheless, the official
conclusion of the UK government was not free from controversy. For instance,
Mann argued that:
[T]‌he inviolability of a mission’s premises is by no means absolute, but must give way
if the mission has allowed such danger to arise in its premises as to provoke the receiv-
ing State and take measures reasonably necessary to protect the security of the life and

32  Michael Hardy, Modern Diplomatic Law (Manchester University Press, Manchester 1968) 44;
Foreign Affairs Committee (n 31), para 90.
33  See Hardy (n 32) 44. This conclusion is similar to Denza’s opinion discussed earlier in this chap-
ter, see text to n 24 above. Similar to Denza, Cameron also points out that the breach of art 41(1)
and 41(3) of the Vienna Convention does not justify the breach of the inviolability of mission prem-
ises in art 22(1). See Iain Cameron, ‘First Report of the Foreign Affairs Committee of the House of
Commons’ (1985) 34 ICLQ 610, 612.
34  Foreign Affairs Committee (n 31), para 91.
35  ibid para 95. See also Rosalyn Higgins, ‘The Abuse of Diplomatic Privileges and Immunities:
Recent United Kingdom Experience’ (1985) 79 AJIL 641, 646–​47.
36 Secretary of State for Foreign and Commonwealth Affairs (UK), ‘Government Report on
Review of the Vienna Convention on Diplomatic Relations and Reply to “The Abuse of Diplomatic
Immunities and Privileges” ’ (Cmnd 9497, 1985), para 83 in which the former conclusion in the
Report was accepted by the UK government.
 157

The Nature of the Dilemma 157

property of the inhabitants. . . . It is therefore impossible to agree with the conclusions
of the House of Commons Committee, accepted in paragraph 83 of the Government
White Paper.37
Also, it is worth mentioning the opinion of Denza. Although she admits that
the inviolability of mission premises shall not be overridden even in cases of
manifest abuse such as criminal activities, she acknowledges the justification
of the invocation of the right of self-​defence as a last resort to protect human
life.38 Evidently, some other scholars agree with Denza on this issue.39 Whether
the right of self-​defence can be invoked as a valid justification to override the
inviolability of mission premises will be further analysed in section 2.1.2 of this
chapter.

1.3 The dilemma faced by the receiving State

The above section identifies two distinct kinds of emergency situations in which
the absolute inviolability of mission premises in Article 22(1) of the VCDR might
be challenged. As was pointed out earlier, Article 22(1) of the VCDR does not
allow any exception to the absolute inviolability of mission premises. As such, the
absolute inviolability of mission premises forms an international obligation for
State parties to the VCDR and accordingly, every receiving State shall observe such
an obligation. Failure to comply with absolute inviolability will lead to the breach
of the obligation under Article 22(1) of the VCDR, as it is stipulated in Article 12
of the Draft Articles on State Responsibility: ‘[W]‌hen an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin
or character.’
Nevertheless, it can be seen from the above analysis that frequently the author-
ities of the receiving State have to decide whether they should enter the mission
premises so as to prevent further threat to public safety or save human life even
without securing express consent from the head of the diplomatic mission. The
issue is more critical when they find that they must stop an ongoing criminal act
inside the mission premises but their request for entering the mission premises
is expressly refused by the head of the mission as exemplified by the situation
following the death of Fletcher. Thus, what the authorities of the receiving State
have to decide is whether they shall strictly observe the obligation of the inviola­
bility of mission premises as required by Article 22(1) of the VCDR even when
the emergency situation will lead to the great danger of public safety and the pos-
sible loss of human life, or breach the inviolability of mission premises anyway so
as to protect public safety and human life and then bear the State responsibility

37  Fritz A Mann, ‘ “Inviolability” and other Problems of the Vienna Convention on Diplomatic
Relations’ in Fritz A Mann, Further Studies in International Law (OUP, Oxford 1990) 336.
38  Denza (n 6) 123.
39 John S Beaumont, ‘Self-​Defence as a Justification for Disregarding Diplomatic Immunity’
(1991) 29 Canadian YBIL 391, 398.
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158 Protection of Public Safety vs Inviolability of Mission Premises

arising from the breach. Inevitably, this thorny issue becomes a dilemma faced
by the authorities of the receiving State in the two kinds of emergency situations
mentioned above: if they do stick to their obligation under Article 22(1) of the
VCDR, they may face the unwelcomed consequences caused by force majeure or
criminal activities inside the mission premises. Public safety is threatened and
probably, human life will be lost. They may be criticized by the general public
for their indifference to save human life and their inability to stop blatant crim-
inal activities inside the mission premises. On the other hand, if they choose to
breach the inviolability of mission premises, they will probably receive official
protest from the sending State and will be held responsible for such a breach.
Moreover, considering the nature of diplomatic relations, including the fact that
a receiving State is also a sending State with regard to its own diplomatic mission
overseas, the breach of the inviolability of mission premises in its capital may
lead to the possible breach of the inviolability of its own mission premises in
foreign capitals. Obviously, this reciprocal nature adds to the misgivings of the
authorities of the receiving State, and increases the dilemma faced by that State.
As Higgins incisively pointed out:
Virtually every State that is host to a foreign diplomatic mission will have its own diplo-
mats operating abroad, and its own embassy in the territory of the sending State. Every
State wants its own diplomats operating abroad, and its own diplomatic bags, embassies
and archives, to receive those protections that are provided by international law. Honoring
those same obligations vis-​a-​vis the diplomatic community in one’s own country is widely
perceived as a major factor in ensuring that there is no erosion of the international law
requirements on diplomatic privileges and immunities.40
Thus, as it was commented in the Report from the UK Foreign Affairs Committee:
In all these matters, of course, considerations of reciprocity will be important.  . . .
[R]‌eciprocal action may be taken against our diplomats overseas. . . . [T]he fear of recipro-
cal action . . . must always weigh in consideration.41
Obviously, the ‘deterrent effect of reciprocity’ usually makes the authorities of the
receiving State refrain from disregarding the inviolability of mission premises in
the dilemma of deciding whether the protection of public safety and human life
shall prevail over the inviolability.42
To sum up, considering the aforementioned factors, it can be revealed that
when facing the dilemma of judging whether the protection of public safety
and human life shall prevail over the principle of diplomatic inviolability,
the authorities of the receiving State may not easily find a straightforward
solution.

40  Higgins (n 35) 641. 41  Foreign Affairs Committee (n 31), para 66.

42  Omer Yousif Elagab, The Legality of Non-​forcible Countermeasures in International Law (OUP,
Oxford 1988) 117, as cited in LANM Barnhoorn, ‘Diplomatic Law and the Unilateral Remedies’
(1994) 25 Netherlands Yearbook of International Law 39, 64.
 159

To Solve the Dilemma: Examination of Possible Justifications 159

2.  Attempts to Solve the Dilemma: Examination

of Possible Justifications

In order to solve the dilemma faced by the receiving State, it is necessary to exam-
ine possible justifications which may relieve the receiving State from State respon-
sibility arising from the breach of the inviolability of mission premises in the two
aforementioned kinds of emergency situations. Reviewing relevant rules in con-
temporary international law, the most helpful source of such kind of justifications
can be found in Articles 20 to 26 of the Draft Articles in State Responsibility in
which six defences to the breach of an international obligation are enumerated.
These defences are: consent, self-​defence, countermeasures, force majeure, distress,
and necessity. Among these six defences, consent is obviously inapplicable in the
present context: if the head of the mission provides consent for entry into mission
premises in emergency situations,43 there will be no breach of the inviolability of
mission premises and so no dilemma for the authorities of the receiving State will
ever arise. Countermeasures are also not applicable in this context, as Article 50(2)(b)
of the Draft Articles on State Responsibility expressly provides that ‘[a]‌State tak-
ing countermeasures is not relieved from fulfilling its obligations . . . [t]o respect
the inviolability of diplomatic or consular agents, premises, archives and docu-
ments’. Also, the debate concerning the invocation of force majeure in emergency
situations has been discussed already in the former section. Thus, only the remain-
ing three defences will be examined in the following sections.

2.1 The right of self-​defence

2.1.1 The conditions of invoking self-​defence in contemporary
international law
Self-​defence is a classical doctrine of customary international law, and its modern
international law origin can be traced back to the Caroline Case in 1837 in which
the conditions of invoking the right of self-​defence were proposed as:
A necessity of self-​defence, instant, overwhelming, leaving no choice of means and no
moment for deliberation  . . .  The act, justified by the necessity of self-​defence, must be
limited by that necessity, and kept clearly within it.44

43  For instance, see the incident involving a fire at the Israeli embassy in Paris on 23 May 2002,
‘Fire Destroys Israeli Embassy in Paris’ People’s Daily (Beijing, 23 May 2002) <http://​english.people-
daily.com.cn/​200205/​23/​eng20020523_​96337.shtml> accessed 2 May 2016.
44 ‘Correspondence between Great Britain and the United States, respecting the Arrest and
Imprisonment of Mr. McLeod, for the Destruction of the Steamboat Caroline’ (1841) 29 British and
Foreign State Papers 1126, 1138, in Christopher Greenwood, ‘Caroline, The’ in Rüdiger Wolfrum
(ed), The Max Planck Encyclopedia of Public International Law (OUP, Oxford 2012) vol I, 1141,
para 5.
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160 Protection of Public Safety vs Inviolability of Mission Premises

Nowadays, a typical textbook definition of self-​defence in customary international
law can be cited as follows:
[The use of force] in response to an immediate and pressing threat, which could not be
avoided by alternative measures and if the force used to remove that threat was proportional
to the danger posed.45
The conditions for invoking the right of self-​defence are self-​evident from the def-
inition: the existence of an immediate threat, no alternative measures must have
been available, and the principle of proportionality must have been observed.46
The situations in which the right of self-​defence can be applied in customary inter-
national law are proposed by Dixon as follows:
1. In response to and directed against an ongoing armed attack against State
territory.
2. In anticipation of an armed attack or threat to the State’s security, so that a
State may strike first, with force, to neutralize an immediate but potential
threat to its security.
3. In response to an attack (threatened or actual) against State interests, such as
territory, nationals, property, and rights guaranteed under international law.
If any of these attributes of the State are threatened, then the State may use
force to protect them.
4. Where the ‘attack’ does not itself involve measures of armed force, such as
economic aggression and propaganda. All that is required is that there is an
instant and overwhelming necessity for forceful action.47
The above proposed definition and conditions indicate a wide possibility for the
application of the right of self-​defence in customary international law, and admit-
tedly, some of the points are indeed not free from controversy.48 By contrast, a
much more restrictive application of the right of self-​defence is stipulated in Article
51 of the UN Charter, which provides:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-​defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security.
It can be seen that the right of self-​defence under Article 51 of the UN Charter
differs significantly from the right of self-​defence in customary international law
in the following several aspects. First, while in customary international law the

45  Martin Dixon, Textbook on International Law (7th edn, OUP, Oxford 2013) 328.
46  There is general agreement among authorities on these conditions, although some scholars chal-
lenge each of them. See Christine Gray, International Law and the Use of Force (3rd edn, OUP, Oxford
2008) 148–​56.
47  Dixon (n 45) 328.
48  Especially points 3 and 4.  See generally, Greenwood (n 44)  paras 9–​10, 41–​51. The present
author remains critical of points 3 and 4. See the comment on the wide interpretation of the custom-
ary international law application of the right of self-​defence (text following n 56).
 16

To Solve the Dilemma: Examination of Possible Justifications 161

application of the right of self-​defence may not have to be confined to the actual
existence of an ‘armed attack’, Article 51 of the UN Charter expressly prescribes
‘armed attack’ as a prerequisite to the application of the right of self-​defence. Thus,
under the UN Charter, the application of the right of self-​defence without an
actual armed attack is inconceivable. Indeed, Article 51 is the sole source for the
application of the right of self-​defence within the UN Charter, and according to
that article the existence of an actual ‘armed attack’ is obviously indispensable to
the invocation of that right.49 Notably, Brownlie commented on Article 51 of the
UN Charter that: ‘[I]‌t is not incongruous to regard Article 51 as containing the
only right of self-​defence permitted by the Charter’(emphasis added).50
Since ‘armed attack’ is the key element of the conditions that must be in place if
the right of self-​defence is to be applied, the question has been raised as to the exact
meaning of the term ‘armed attack’. In the narrowest sense, an armed attack can be
deemed as ‘an invasion by the regular armed forces of one State into the territory
of another State’.51 In addition to this paradigm, there have been several attempts
to clarify the meaning of the term ‘armed attack’ in Article 51 of the UN Charter.
For instance, according to the US Foreign Relations Committee, the term ‘armed
attack’: ‘[C]‌learly does not mean an incident created by irresponsible groups or
individuals, but rather an attack by one State upon another’.52
Brownlie further elaborated that:  ‘[A]‌co-​ordinated and general campaign by
powerful bands of irregulars, with obvious or easily proven complicity of the gov-
ernment of a State from which they operate, would constitute an “armed attack” ’.53
The ICJ in the Nicaragua Case provided a similar statement in which the Court
pointed out that an ‘armed attack’ can be identified as:
the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to
(inter alia) an actual armed attack conducted by regular forces, or its substantial involve-
ment therein.54
In addition to the existence of an actual armed attack (or at least activities amount-
ing to an actual armed attack), another distinct difference between the appli-
cation of the right of self-​defence in customary international law and the UN
Charter is the possibility that the right of self-​defence may be applied in customary

49 Christopher Greenwood, ‘The ICJ and the Use of Force’ in Vaughan Lowe and Malgosia
Fitzmaurice (eds), Fifty Years of the International Court of Justice (CUP, Cambridge 1996) 373, 379.
50  Ian Brownlie, International Law and the Use of Force by States (OUP, Oxford 1963) 271.
51  Gray (n 46) 128. It is worth noting that art 2(4) of the UN Charter uses the term ‘threat or use
of force’ instead of ‘armed attack’. Whether this difference suggests that the term ‘armed attack’ should
always be understood in a more narrow sense is not clear.
52  As cited in Brownlie (n 50) 278. Though the comment is on the term ‘armed attack’ as it appears
in art 5 of the North Atlantic Treaty, it can be considered to apply as well to the term used in art 51
of the UN Charter.
53  Brownlie (n 50) 279.
54  Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America) (Merits) [1986] ICJ Rep 14, para 195. The statement is actually based on Article 3,
paragraph (g), of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX).
162

162 Protection of Public Safety vs Inviolability of Mission Premises

international law to protect vital State interests other than the State territory from
invasion. As Bowett expressly pointed out in his classical work Self-​Defense in
International Law, the function of self-​defence is ‘to justify action otherwise illegal,
which is necessary to protect certain essential rights of the State against violation
by other States’.55 Similarly, Dixon also admitted that ‘a number of States argue
that aggression can take many forms, not only the classic attack against territory,
especially in the modern age’.56 Here the interpretation seems to suggest that any
possible threat to interests other than State security and State territory may trigger
the application of the right of self-​defence, such as the attack or threat of attack on
the nationals of a State by another State. Obviously, this wide interpretation is far
beyond the scope of application of the right of self-​defence in Article 51 of the UN
Charter. To what extent such a wide interpretation reflects the actual State practice
of the right of self-​defence remains highly controversial. Indeed, there is little evi-
dence of State practice to support such a wide interpretation, not to mention the
indispensable opinion juris.
Notwithstanding the differences between the application of the right of self-​
defence in customary international law and the UN Charter, it is admitted that the
customary international law application of the right of self-​defence ‘continued to
exist alongside the treaty law (ie, the UN Charter)’.57 Just as the ICJ commented
on the continuing relevance of the customary international law application of
self-​defence:
Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inher-
ent’ right of self-​defence and it is hard to see how this can be other than of a customary
nature, even if its present content has been confirmed and influenced by the Charter . . . It
cannot, therefore, be held that article 51 is a provision which ‘subsumes and supervenes’
customary international law . . . The areas governed by the two sources of law thus do not
overlap exactly, and the rules do not have the same content.58

2.1.2 Can self-​defence be invoked in emergency situations to override

the inviolability of mission premises?
This section deals with the possibility of invoking the right of self-​defence in emer-
gency situations. Obviously, the right of self-​defence cannot be invoked in emer-
gency situations caused by force majeure for the reason that such an emergency
situation has nothing to do with any threat caused by an armed attack or involve-
ment of the use of force. The prerequisite of invoking the right of self-​defence

55 Derek William Bowett, Self-​ Defense in International Law (Manchester University Press,
Manchester 1958) 270.
56  Dixon (n 45) 331. Gray, on the other hand, argues that there is no obvious rule in customary
law that a State can invoke the right of self-​defence to protect its nationals abroad. See Gray (n 46)
156–​60.
57  Malcom N Shaw, International Law (7th edn, CUP, Cambridge 2014) 821.
58  Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Merits) [1986] ICJ Rep 14, para 176.
 163

To Solve the Dilemma: Examination of Possible Justifications 163

cannot be met in this kind of situation. And so, the issue of invoking the right
of self-​defence is relevant exclusively to emergency situations caused by criminal
activities inside mission premises.
To examine the applicability of the right of self-​defence in this kind of situ-
ation, the debate over the applicability of the right of self-​defence in the aforemen-
tioned Report from the UK Foreign Affairs Committee is especially worth noting.
Concerning the applicability of self-​defence to override the inviolability of mission
premises when there is an ongoing criminal act performed inside the mission,
Draper commented as follows:
Self-​defence is an important principle of customary international law, exemplified, but not
exhausted, by Article 51 of the UN Charter. From the nature of self-​defence it derives from
the law of nature from which international law derives its being. It comes into play when
acts of force are committed by States, although it is not limited to such contingencies.
Thus, in the incident of the shooting of Woman Police Officer Fletcher on 17 April, 1984,
by an inmate within the Libyan Embassy whose status and identity was unknown, it can
properly be contended that, an immediate response, counter-​fire might have been directed
at the Libyan Embassy windows by the police. Further, in the period immediately after the
firing from the embassy, entry might have been carried out by the police, with firearms,
if available, and sufficient force used within the embassy to overpower the assailant or any
person armed and remove all weapons found inside. Such acts would, in exercise of the
right of self-​defence, probably have been required immediately after the firing from within
or during continued firing.59
Several points can be summarized from Draper’s comments. First, Draper con-
tended that the customary international law doctrine of self-​defence can be applied
in emergency situations caused by criminal activities (in this incident, the shooting
from the Libyan Embassy window) inside the mission premises even if the threat
does not involve the attack on the territory of the receiving State. Secondly, Draper
radically proposed that in this kind of emergency situation, the authorities of the
receiving State (in this situation, the UK police) are entitled to invoke self-​defence
to override the inviolability of mission premises (ie, to resort to counter-​fire and
even to enter the premises to carry out a search). Thirdly, Draper suggested that,
provided that the measures adopted are proportional to the threat, and the actions
are taken in time (immediately after the firing from the embassy), the conditions
for invoking the right of self-​defence under customary international law should be
considered as fully met. Notably, several scholars hold the same or similar opin-
ions as Draper’s. For example, Sir John Freeland, in reply to the question whether
‘self-​defence in international law is held to refer only to the self-​defence of States
against other States rather than individuals’, replied as follows: ‘I think self-​defence
not only applies to action taken directly against a State but also to actions directed
against nationals of that State.’60 Freeland further elaborated his appreciation of

59 Gerald Draper, ‘Memorandum’, in Foreign Affairs Committee (n 31), Appendices to the

Minutes of Evidence, 71–​72.
60  Foreign Affairs Committee (n 31), Minutes of Evidence, 28, para 47 (Sir John Freeland).
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164 Protection of Public Safety vs Inviolability of Mission Premises

the application of the right of self-​defence to protect human life against the inviol-
ability of mission premises:
I certainly would not exclude the possibility of its being justifiable in a case where, for
example, there is continued firing of weapons from the premises of an embassy, where every
other method has been tried and has failed to stop that, for it then to be lawful to go into
the embassy to stop it.61
Similar, but not identical to Freeland’s hypothetical scenario of ‘continued firing
from the embassy’, is the extraordinary scenario proposed by Sir Francis Vallat,
who was the deputy legal advisor of the British Foreign Office during the drafting
process of the VCDR:
Suppose the embassy were being used as a kind of fortress for a running battle with people
in the street, [the right of self-​defence] might then become justifiable, but I find it diffi-
cult to imagine that before an international tribunal of repute one would be held to be
justified to run into an embassy because there had been one or two shots fired, even if that
happened to cause an injury or death.62
Compared with Freeland’s opinion, Vallat seemed to adopt a moderate approach.
He rejected that the right of self-​defence can be invoked if only one or two shots
have been fired from the embassy. He seemed to emphasize the condition of neces-
sity, and in his opinion, one or two shots fired from the embassy cannot be regarded
as such a threat to the public safety even though the shots could cause the injury
and death of some persons. His contention of such a threshold for testing the
conditions of necessity was strongly criticized by Mann. Mann pointed out that
Vallat’s argument: ‘seems to mean that the authorities have to wait for the death of
a third person before they can intervene—​a proposition which must be described
as wholly unacceptable and unrealistic’.63 Accordingly, Mann argued that if public
safety or human life is endangered by the abuse of diplomatic inviolability, there
is no doubt that the right of self-​defence could and should be invoked to override
the inviolability of mission premises, so as to save life and property and prevent
further threat to public safety. He argued, if ‘a large quantity of explosives is stored
in the premises of an embassy and constitute a danger of the utmost gravity to a
large, inhabited section of a town’, it would be absurd to wait for the explosion and
actual enormous damage occurred before the local authorities take any action to
prevent the consequences. Based on the same logic:
[O]‌nce shots have been fired from an embassy and an undertaking to prevent similar acts
has been declined by the diplomat in charge, the receiving State should be entitled to enter
the embassy, search it and remove such weapons as may be found.64
These extraordinary examples and arguments proposed by aforementioned
scholars received criticism from other scholars. The problem of the above cited
arguments is obvious: all these arguments fail to notice that the prerequisite

61  ibid para 50. 62  ibid 34, para 78 (Sir Francis Vallat).
63  Mann (n 37) 334–​35. 64 ibid.
 165

To Solve the Dilemma: Examination of Possible Justifications 165

for invoking self-​defence is the existence of an ‘armed attack’. Obviously a

mere shot from a window of the embassy cannot amount to the ‘armed attack’
condition as stipulated in Article 51 of the UN Charter. Even though Freeland
argued that the attack on a national of a State may constitute an ‘armed attack’,
it is highly controversial whether such a wide interpretation reflects custom-
ary international law. As Brown pointed out, ‘There appears to have been no
example of a State exercising such a right of self-​defence.’65 Higgins is also
‘skeptical as to the applicability at all of the international law concept of self-​
defense to violent acts by the representatives of one State within the territory
of another, directed against the latter’s citizens’.66 Both Brown and Higgins
held the opinion that even in an emergency situation when there is actual
shooting coming from the embassy, the invocation of the right of self-​defence
to override the inviolability of mission premises cannot be justified. Moreover,
it would be too radical for the authorities of the receiving State to override
the inviolability of mission premises merely based on the imaginary extreme
scenarios and extraordinary deduction from scholars such as Vallet and Mann.
Interestingly, the Report from the UK Foreign Affairs Committee concluded
that the right of self-​defence cannot be adopted to override diplomatic inviola­
bility in most kinds of emergency situations and it emphasized that the inviol-
ability of the mission premises should be generally observed.67 However, it
is worth noting that the UK government later, in its official response to the
Report, did recognize the possibility of overriding the inviolability of the dip-
lomatic bag based on the right of self-​defence so as to protect national secur-
ity, public safety and human life, though it did not expressly suggest that this
conclusion might also apply to the inviolability of mission premises.68 Last
but not least, it is also worth noting that Article 21 of the Draft Articles on
State Responsibility69 implies that the invocation of self-​defence to preclude
the receiving State from being held responsible for breach of its obligation
under Article 22(1) of the VCDR requires a more restrictive interpretation
of the right of self-​defence, which suggests that the invocation of the right
of self-​defence should be confined to the conditions required by Article 51
of the UN Charter. If this is the case, the invocation of the right of self-​defence
to override the inviolability of mission premises under any emergency situ-
ation in the absence of an armed attack will be extremely questionable. To sum
up, it can be asserted that the invocation of the right of self-​defence to override
the inviolability of mission premises is far from justified.

65 Jonathan Brown, ‘Diplomatic Immunity:  State Practice under the Vienna Convention on
Diplomatic Relations’ (1988) 37 ICLQ 53, 86.
66  Higgins (n 35) 647.
67  Foreign Affairs Committee (n 31) paras 95, 97, and 111. The only exception expressly men-
tioned in the report is the protection of human life, which is considered to enjoy priority over the
inviolability of the diplomatic bag.
68  Cmnd 9497 (n 36) para 48.
69  Article 21 provides: ‘The wrongfulness of an act of a State is precluded if the act constitutes a
lawful measure of self-​defence taken in conformity with the Charter of the United Nations.’
16

166 Protection of Public Safety vs Inviolability of Mission Premises

2.2 Distress and necessity

Distress and necessity are two classic types of defences that may justify an other-
wise existing breach of an international obligation.70 Whether they can be invoked
as justifications for the authorities of the receiving State to override the inviolabil-
ity of mission premises in emergency situations will be analysed in the following
sections.71

2.2.1 Can distress be invoked as a justification to override the inviolability

of mission premises?
According to Article 24 of the Draft Articles on State Responsibility:
The wrongfulness of an act of a State . . . is precluded if the author of the act in question has
no other reasonable way, in a situation of distress, of saving the author’s life or the lives of
other persons entrusted to the author’s care.
Based on this provision, it can be concluded that the essential prerequisite to
invoke distress as a valid defence to preclude wrongfulness of an otherwise unlaw-
ful act of a State lies in the immediate necessity to save someone’s life—​either that
of the author of the act or of other persons entrusted to the author’s care.72
At first glance, it seems that distress can be appropriately invoked to override the
inviolability of mission premises in emergency situations caused by criminal activi-
ties inside the diplomatic mission. Take the aforementioned infamous Fletcher
incident as an example: if what Sir John Freeland and Sir Francis Vallat depicted
became a reality, it might be reasonable to argue that the authorities of the receiv-
ing State such as those colleagues of policewoman Fletcher who were on the scene
had to counter-​fire at the window of the Libyan Embassy, to suppress the perpet-
rator and prevent further threats to public safety and human life. Indeed, distress
differs from force majeure in that the author of the act (in the present context, the
authorities of the receiving State) has free will to decide whether to undertake
such an act.73 That implies, in face of the breach of an international obligation
on the one hand and the immediate necessity to save someone’s life on the other
hand, the author of the act deliberately chooses the latter option as a priority on
the basis that complying with the specific international obligation ‘would almost
certainly cause his or her death or that of the persons entrusted to his care’.74 This

70  See Elena Fasoli, ‘Distress’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public
International Law (OUP, Oxford 2012) vol III, 168, paras 2–​4; Attila Tanzi, ‘Necessity’ in ibid vol
VII, 583, paras 1–​2.
71  Since the emergency situation caused by force majeure has been discussed earlier, in the following
sections only the emergency situation caused by criminal activities of the diplomatic mission will be
the focus of the analysis.
72  The Commentary on the Draft Articles on State Responsibility clearly points out that the appli-
cation of art 24 is limited to cases where human life is at stake. This is the prerequisite for invoking
distress as a valid defence. See James Crawford, The International Law Commission’s Articles on State
Responsibility: Introduction, Text and Commentaries (CUP, Cambridge 2001) 176.
73  James Crawford, State Responsibility: The General Part (CUP, Cambridge 2013) 301.
74  Fasoli (n 70) para 7.
 167

To Solve the Dilemma: Examination of Possible Justifications 167

is reflected in the text of Article 24 through the reference of there being ‘no other
reasonable way’ to avoid the consequence, apart from breaching the relevant inter-
national obligation. However, the crucial issue is, whether the reaction and the
measure adopted by the authorities of the receiving State such as counter-​fire or
even storming the mission premises can be deemed ‘reasonable’ within the ambit
of the condition to invoke distress. As cited above, Sir Francis Vallet frankly admit-
ted that it would not be convincing to disregard the inviolability of mission prem-
ises if ‘there had been one or two shots fired’.75 Here it is obvious that no uniform
criteria can be set—​a criticism that is apparent from Mann’s opinion on Vallet’s
assertion. Besides, it is also worth noting that to invoke distress requires that the
measure adopted must be the only feasible way to prevent the loss of life. In the
Fletcher incident, whether the disregard of the inviolability of mission premises
was the ‘only feasible way’ is also questionable. Performing counter-​fire directly
against mission premises immediately after one or two shots were fired from the
embassy window without even contacting the diplomatic mission or the Ministry
of Foreign Affairs (MFA) of the sending State seems not to be an appropriate
response to the emergency. The condition for invoking distress as is stipulated in
Article 24 of the Draft Articles on State Responsibility should be interpreted in a
restrictive way to save human life in extreme emergency situations, rather than to
allow the abuse of the unilateral power of the receiving State to justify the breach
of its international obligation under Article 22(1) of the VCDR. Considering these
facts, it may be concluded that distress cannot be justified to override the inviol-
ability of mission premises in emergency situations caused by criminal activities
from within the mission premises.

2.2.2 Can necessity be invoked as a justification for breaching the inviolability

of mission premises?
Whereas the possible invocation of distress is confined to emergency situations to
save human life, the invocation of necessity covers issues related to the safeguard-
ing of ‘essential interests’. To be specific, Article 25(1)(a) of the Draft Articles on
State Responsibility prescribes that necessity can be invoked as a valid defence
to preclude the wrongfulness of a State’s act if the act ‘is the only means for the
State to safeguard an essential interest against a grave and imminent peril’. It can
be seen from Article 25(1)(a) that the invocation of necessity is subjected to three
essential conditions. In the first place, there should be an ‘essential interest’ for the
State to protect. The term ‘essential interest’ is not strictly defined in the text of
Article 25(1)(a) so it can be suggested that the interpretation of ‘essential interest’
varies from case to case and cannot be prejudged.76 Secondly, the essential interest
of the State must have been threatened by ‘a grave and imminent peril’. Like the
term ‘essential interest’, what can be deemed ‘grave’ is subject to interpretation in

75  See n 62 above. 76  Tanzi (n 70) para 14. See also Crawford (n 72) 183.
168

168 Protection of Public Safety vs Inviolability of Mission Premises

different circumstances.77 Finally, the State’s act should be ‘the only means’ that
the State can feasibly take to protect the essential interest. The term ‘only means’
suggests that necessity may not be invoked ‘if there are other (otherwise lawful)
means available, even if they may be more costly or less convenient’.78 Obviously,
if the receiving State intends to invoke necessity to override the inviolability of
mission premises, it must fulfill all these three conditions. With regard to the first
condition, in both the emergency situations caused by force majeure and crim-
inal activities inside the diplomatic mission, it can be acknowledged that public
safety and human life can be properly deemed ‘essential interests’ that require to be
safeguarded. However, what is worth noting is that Article 25(1)(b) of the Draft
Articles on State Responsibility specifies a proviso to the invocation of necessity:
the act of the State shall not ‘seriously impair an essential interest of the State or
States towards which the obligation exists, or of the international community as
a whole’. It is submitted that the inviolability of mission premises is generally
regarded as an underlying principle of public international law. Just as the ICJ
pointed out in the judgement of the Tehran Hostages Case:
[T]‌he principle of the inviolability of the persons of diplomatic agents and the premises of
diplomatic missions is one of the very foundations of this long-​established regime.79
As the Commentary on the Draft Articles on State Responsibility points out, neces-
sity ‘arises where there is an irreconcilable conflict, between an essential interest on
the one hand and an obligation of the State invoking necessity on the other’, and
so, ‘necessity will only rarely be available to excuse non-​performance of an obliga-
tion and . . . it is subject to strict limitations to safeguard against possible abuse’.80
Since the issue whether the essential interests of public safety and human life shall
prevail over the well-​established principle of the inviolability of mission premises is
far from settled, it can therefore suggest that the proviso of Article 25(1)(b) of the
Draft Articles on State Responsibility can invalidate the invocation of necessity to
disregard the inviolability of mission premises in the aforementioned emergency
situations.
With regard to the second condition, the issue is even less clear. For instance,
if a large quantity of explosives is found stored in the mission premises, can such
a situation be justly deemed as forming a ‘grave and imminent peril’ to public
safety and human life? Mann’s argument is that such a situation be regarded as
an emergency which forms such a peril. However, the cause and effect of storing
a large quantity of explosives in mission premises and the ‘actual enormous dam-
age’ is not free from controversy. After all, in the absence of any specific criteria
of ‘grave and imminent peril’, it is too radical for the authorities of the receiving
State to disregard the inviolability of mission premises merely based on imaginary
consequences.

77 ibid. 78  Crawford (n 72) 184.

79  Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America
v Iran) [1980] ICJ Rep 3, para 86.
80  Crawford (n 72) 178.
 169

Alternative Measures to Solve the Dilemma 169

Finally, it is also not convincing to assert that in the aforementioned emergency

situations, the breach of the inviolability of mission premises is the ‘only means’ to
safeguard public safety and human life. The reason is perhaps similar to that which
has been discussed with regard to the invocation of distress. As will be proposed
in the last section of this chapter, there are several alternative measures that the
authorities of the receiving State can adopt when they are faced with the dilemma
whether they should breach the inviolability of mission premises to protect public
safety and human life. It can therefore be concluded that the invocation of neces-
sity to override the inviolability of mission premises in emergency situations can-
not be justified.

3.  Alternative Measures to Solve the Dilemma

As discussed above, the traditional justifications listed in the Draft Articles on State
Responsibility do not solve the dilemma faced by the authorities of the receiving
State. Thus, in order to provide a solution, alternative measures will be proposed
in the following paragraphs.
To begin with, various administrative measures can be adopted by the receiv-
ing State to tackle the dilemma. To be specific, if the receiving State can build up
effective communication channels between its local authorities and the diplomatic
mission of the sending State as well as the MFA of the sending State, some prac-
tical difficulties may be overcome. It is admitted that normally, a foreign diplo-
matic mission will contact the MFA of the receiving State on important issues.
However, it must also be appreciated that usually contacts between the diplomatic
mission and the MFA of the receiving State are less efficient when emergency
situations happen. For instance, if there happens to be a serious earthquake or
similar natural disasters, the diplomatic mission may not be able to contact the
MFA of the receiving State if the Ambassador himself is seriously wounded.81 In
such an emergency situation the local authorities may be in confusion and face the
dilemma of whether they should come to the rescue immediately, without obtain-
ing consent from the head of the mission. If there is an effective communication
channel between them and the MFA of the sending State, such difficulties can be
greatly reduced, and the dilemma arising from the conflict of the inviolability of
mission premises and the necessity to protect human life may be solved. In such
cases when the protection of human life is a great priority, it is better for them to
obtain consent directly from the MFA of the sending State, and this is perhaps
more efficient than waiting for the MFA of the receiving State to contact the MFA
of the sending State.
Essentially, this alternative measure requires better coordination and cooper-
ation between the local authorities (police, firefighters, rescue teams, and medical

81  See the incident cited in ‘Taiwan Ambassador to Haiti Taken to Hospital, Embassy Destroyed’
(n 20).
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170 Protection of Public Safety vs Inviolability of Mission Premises

service teams, etc) and foreign diplomatic mission. This can be achieved by set-
ting up a direct hotline between the police bureau, the fire department, hospitals,
and the foreign diplomatic mission, as well as the MFA of the sending State. As
a result, the improvement of direct communication may be helpful and effective
to solve the dilemma faced by the authorities of the receiving State in emergency
situations.
In addition to improvement in coordination and cooperation between the
local authorities and the foreign diplomatic mission and the MFA of the sending
State, coordination and cooperation between the local authorities and the MFA
of the receiving State also need to be improved. As suggested in the First Report
from the UK Foreign Affairs Committee, the liaison between local police and the
Foreign and Commonwealth Office should be improved so that enough consult-
ation will be received in time by local authorities such as the police and firefight-
ers.82 Obviously, legal advisers and international lawyers in the MFA are far more
familiar with specific rules of diplomatic law than local police officers, firefighters,
rescue teams, and medical service teams. And so their advice may provide use-
ful guidance for the local authorities to solve dilemmas arising from the conflict
between the inviolability of mission premises and the protection of public safety
and human life.

4. Conclusions

By reviewing the draft history of Article 22(1) of the VCDR, it can be concluded
that the inviolability of mission premises is absolute, without any exception to the
general rule of inviolability. This assertion suggests that even in emergency situa-
tions when public safety and human life are threatened by force majeure or criminal
activities from within the mission premises, the consent from head of the mission
of the sending State is still the prerequisite for authorities of the receiving State to
enter the mission premises. Without securing express consent from the head of
the mission, the authorities of the receiving State will run the risk of breaching
the international obligation of Article 22(1) of the VCDR, and such a breach will
give rise to State responsibility of the receiving State. As such, the authorities of
the receiving State will inevitably face a dilemma: in emergency situations caused
by force majeure or criminal activities from within the diplomatic mission, they
have to determine whether the absolute inviolability of mission premises should
be overridden by need to protect public safety and human life.
The most important conclusion to be drawn from this chapter is that the
dilemma cannot be solved by simply adopting radical measures to disregard the
inviolability of mission premises. After examining various defences which might
preclude the receiving State from being held responsible for the breach of the
inviolability of mission premises, it can be stated that none of the defences are

82  See Foreign Affairs Committee (n 31), paras 125–​26.

 17

Conclusions 171

applicable in emergency situations caused by force majeure or criminal activities

originating within the diplomatic mission. The crux lies in the fact that the condi-
tions required to invoke these defences cannot be fully met. Thus, classic defences
such as the rights of self-​defence, distress, and necessity cannot justifiably be
invoked by the authorities of the receiving State to allow the breach of the inviola­
bility of mission premises in emergency situations. In order to effectively solve
the dilemma, the authorities of the receiving State are advised to adopt various
alternative administrative measures such as facilitating communication between
the authorities of the receiving State and the diplomatic mission as well as the
MFA of the sending State so as to improve coordination and cooperation between
them. In addition, the coordination and cooperation between the authorities and
the MFA of the receiving State also need to be improved. By adopting these alter-
native administrative measures, the dilemma faced by the receiving State may be
effectively solved.
172

11
Contemporary Developments Relating to the
Inviolability of Mission Premises
Juan E Falconi Puig

1. Background

The VCDR guarantees the sovereignty and equality of States and seeks the main-
tenance of international peace and security, as well as friendly relations between
nations.
It has recognized the status of diplomatic agents that from ancient times have
been those who have developed friendly relations between the countries, inde-
pendent of their different governmental, constitutional, and legal systems.
Generally law—​national or international—​which has been embodied in legal
texts reflects the reality of a given moment and a specific geographical area, but
these legal texts are also lagging behind the technological advances and the devel-
opment of systems and procedures in all subjects. These norms were the product
of necessity—​to regulate life in society and, in this case, within the international
community.
Therefore, it is easy to see that international conventions may turn obsolete or
become outdated in one or more of the topics covered in those documents. That is
the case of the VCDR, which was adopted more than fifty years ago. It has become
outdated because the needs of the past are not the same as contemporary require-
ments. In those days there was no globalization and no technological progress
along the lines of the internet, which has substantially transformed communica-
tions, to mention only one of the most important daily examples. Today constitu-
tions incorporate e-​government. Reality is in constant change and with it, the law
which, if not updated, has no practical legal application.
With this brief background, we will review in this summary some aspects for a
possible update of the VCDR.
Article 22 VCDR enshrines the absolute inviolability of mission premises and
imposes a special protective duty on receiving States in that regard. It also pro-
vides an express and categorical prohibition of search, requisition, attachment,
or execution. This last aspect should be understood as any order or judicial deci-
sion of a competent authority designed to execute a financial decision against the

Contemporary Developments Relating to the Inviolability of Mission Premises. Juan E Falconi Puig. ©
Juan E Falconi Puig, 2017. Published 2017 by Oxford University Press.
 173

Background 173
diplomatic premises or equipment and furniture that are part of them. But cases
both of violation and of respect of the inviolability of diplomatic premises have
arisen in the past.1
This inviolability means that agents of the receiving State may not enter the
mission premises without the consent of the Head of Mission. But the natural
interpretation of this rule is that this prohibition covers not only the agents of the
receiving State but also any other person, whether or not a national of either the
sending or the receiving State. This is followed by paragraph 2 of Article 22, in
which the receiving State is ordered to take adequate measures to protect the prem-
ises of the mission against any intrusion or damage, without making distinctions
as to where such disturbance may come from—​its authors can thus be any person
and thing, even if it is only temporarily in the host country.
But beyond that, it should be noted that the obligation of the receiving State
extends to avoiding disturbances to the peace of the mission, and to ensure that
there is no interference with its dignity. This means that, to give a graphic example
of the situation, a group of people or even an individual (who may well be a
national of the sending State) cannot enter the mission without the authorization
of the Head of Mission, and cannot protest, shout, make noise, or demonstrate
outside the mission, disturbing its tranquillity and eventually attacking its dignity.
In any of these cases, the Head of Mission or another of its officers may require
from the receiving State the adoption of any appropriate measures to protect the
premises in order to ensure that no one enters, damages, or disturbs the peace of
the mission. Such activities may and indeed do occur when protests exceed normal
limits, disturb the tranquillity, and even, sometimes, interrupt the normal move-
ment of people and vehicles in front of mission premises.
But the nature and scope of this provision go so far that even in emergencies
which originate in accidents or acts of nature, force majeure, or unforeseen circum-
stances, it would still be necessary to have the authorization of the Head of Mission
in order to enter the premises. Article 14 VCDR further elaborates on the three
kinds of Heads of Mission, but excludes the rest of the diplomatic members of the
mission, notwithstanding their rank.2
Another example could be a gas leak: even if it puts at risk the health of the
people within the premises of a diplomatic mission, it cannot be controlled and
repaired by specialized technicians without the authorization of the Head of
Mission for entering the premises.3
Disturbing the peace of a mission or undermining its dignity does not necessar-
ily mean physical attacks to its premises. It includes yelling or verbal expressions
that, because of their volume or content, affect the tranquillity and dignity of the
mission, the State, and the represented government.

1  Ivor Roberts (ed), Satow’s Diplomatic Practice (6th edn, OUP, Oxford 2012) 102, at para 8.11;
103, at para 8.12.
2  Roberts (n 1) 91 at 7.27; 92. 3  VCDR art 14.
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174 Inviolability of Mission Premises: Contemporary Developments

Article 22(3) VCDR which extends protection to the furniture and goods of
the mission is a logical consequence of the principle of inviolability. The same
applies to vehicles of the mission. They cannot be subjected to registration, imply-
ing inspection of any kind; to requisition, which involves the loss of use of movable
property and means of transport; or to an embargo as a measure of execution in
the case of an injunction on the goods, or an execution that involves the divest-
ment of these assets to pay with them an obligation of economical content. This is
logical because both local goods and furniture belong to the sending State and are
protected by absolute immunity—​which is one of the most important privileges
established in usage and international conventions on diplomatic affairs.
Its importance is based on the premise that those assets which are held in prop-
erty or in lease, according to Article 23 VCDR, are exempt from all taxes, national,
regional, or municipal, since the scope and spirit of the Convention as inter-
national law is generally considered to be above national laws, and goes beyond
the courtesy due to diplomatic representatives of a foreign State because they are
privileges originally established by customs instituted over time.
And yet while these legal texts remain valid and current in the field of premises
and property, they necessarily have to be updated in other aspects such as security,
secrecy, and reliability in communications to remain faithful to the principles and
original foundations of the same Convention.
At this point a brief digression is necessary to clarify that when a convention
or international agreement takes precedence over the sovereign laws, which for
internal scope are enacted in a State independently of its system of government,
the sovereignty of this State is not affected since it is the State itself which precisely
in the exercise of that sovereignty has decided to adhere to the relevant inter-
national convention.
On the other side, the consent of the receiving State for the appointment of
Ambassadors is a requirement sine qua non—​as indeed is the consent for the estab-
lishment of diplomatic relations in general. Such consent, however, implies a tacit
acceptance of the diplomatic privileges and immunities—​including those that
exist under customary law—​by the receiving State. Obviously express acceptance
occurs in positive international law, reflected in the treaties and conventions, when
the State originally subscribes to an instrument or adheres to it later as in the pre-
sent case of the VCDR.
Among these privileges and immunities there is the inviolability of embassies
and even of the Ambassador’s residence, which is necessary to enable them to fully,
safely, and peacefully carry out their work. It follows that inviolability cannot be
altered by the receiving State and its agents under any conditions, even in emer-
gencies. In practice, however, there have been some exceptions, such as in the fire
at the US embassy in Moscow, when firefighters were allowed to enter.4

4 Esther Fein, ‘American Embassy in Moscow Is Severely Damaged by Fire’ New  York Times
(29 March 1991) <http://​www.nytimes.com/​1991/​03/​29/​world/​american-​embassy-​in-​moscow-​is-​
severely-​damaged-​by-​fire.html> accessed 19 May 2016.
 175

Privacy and Communications 175

On the other hand in April 1984 the inviolability of the Libyan Embassy in
London was respected after shots had been fired from the building of the mission
at the crowd (which had assembled during a demonstration by the opponents of
Colonel Gaddafi) killing Police Officer Yvonne Fletcher. The British government
broke off diplomatic relations with Libya and, in consequence, all the diplomats
of that country had to leave the United Kingdom, including, obviously, the person
who had fired the shot and caused the death of the Police Officer.
Among the measures that were taken later by the United Kingdom, the
Diplomatic and Consular Premises Act was passed in 1987 which we will briefly
examine later.

2.  Privacy and Communications

On this subject, we shall start by pointing out that all persons have the right to
privacy of their communications, and this has been recognized not only by the
international conventions on human rights,5 but also in the constitutions of most
countries, at least in the Western world.
Article 27 VCDR explicitly instructs the receiving State to ‘[…] permit and
protect free communication on the part of the mission for all official purposes’.
In this way it becomes important to highlight that the documents and archives
of the mission are inviolable, not only when they are inside the premises of a
mission, but wherever they are (Article 24 VCDR). And this is directly related to
what is mentioned in Article 27, since such documents and archives are, generally,
a product of communications between the mission, the Foreign Office or other
government institutions, and colleagues of the receiving State. As a result, Article
27 VCDR charges the State to allow and protect communications of the mission
for all official purposes with its government and the other missions and consulates,
wherever they are.
In this way the mission will be able to employ all the adequate means of com-
munication since this norm—​due to the way it has been formulated—​always
remains topical. The phrase ‘all correspondence’ thus also includes today’s com-
munication via the internet, such as emails, or via mobile phone, through diverse
application software offered for communication, to mention only some of them.
Communication through these means shall always be confidential and inviolable,
despite the fact that these means of communication did not exist at the time when
the VCDR was signed or entered into force. Nonetheless, the London newspaper
The Guardian stated in 2014, that it was easier for the police to tap into mobile
phone communications than to obtain money from a cash machine.6

5  Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III)
(UDHR) art 12; International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 10.
6  James Ball, ‘EE, Vodafone and Three Give Police Mobile Phone Records at Click of a Mouse’ The
Guardian (10 October 2014) <https://​www.theguardian.com/​world/​2014/​oct/​10/​automatic-​police-​
access-​customers-​mobile-​phone-​records-​like-​cash-​machine-​ripa-​three-​ee-​vodafone>.
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176 Inviolability of Mission Premises: Contemporary Developments

In the same vein, the diplomatic bag which contains documents, communica-
tions, and even other objects, cannot be opened or detained.

3.  The Case of Yvonne Fletcher

Going back to the subject of inviolability of the premises of diplomatic missions

enshrined in Article 22 of the VCDR it is opportune to refer to the case of Yvonne
Fletcher.
WPC Fletcher was a policewoman who was killed with a shot from a sniper
from the Libyan embassy in 1984. The bullet was intended for the protesting
Libyan dissidents. The shooting resulted in an eleven-​day siege of the embassy
which only ended when the killer, along with twenty-​one members of the embassy,
was allowed to leave the building and Britain under diplomatic immunity. Yvonne
Fletcher’s death caused the breakdown of diplomatic relations between the two
States.
To be brief, after the shooting, a series of events took place, starting with the
request of the British authorities to be allowed to enter the embassy in search of
guns and explosives, which was not accepted by the Libyan Embassy. Later, and
after breaking diplomatic relations, the UK had to allow the personnel that were
inside the embassy to leave the country, among them the person responsible for the
shot that ended the life of the police officer.
After the murder of Yvonne Fletcher, the Diplomatic and Consular Premises
Act was passed in 1987, and it sets out the conditions for the acquisition and loss
of diplomatic or consular status for the premises, including the request to the
Secretary of State asking for his consent to confer the relevant status on diplomatic
or consular premises.7 However, such request would not be necessary in cases that
had been accepted immediately before this Act entered into force.8
As a result, the recognition of Embassy grounds as diplomatic premises covered
by the VCDR depends on acceptance by the British Secretary of State, acceptance
which can be withdrawn only if doing so is permissible under international law.9
This provision, that the Secretary of State must be satisfied that to withdraw con-
sent or withdraw acceptance is permissible under international law, means there is
no actual conflict of laws between the Vienna Convention and the local law.
This implies that the Secretary of State must come to the conclusion that his
decisions are in accordance with international law and this is normal, since all gov-
ernment officers and private persons apply the law on a daily basis and are in this
regard subject to judicial supervision.
This British law could be mentioned as an exception to international law, but
in truth, considering it was enacted in 1987, and commonly understood to derive
from the murder of WPC Yvonne Fletcher, it is not known that any diplomats

7  Diplomatic and Consular Premises Act (1987) c 46, s 1.

8 ibid s 9(2).    9  ibid s 1(4).
 17

Conclusion 177
posted to the United Kingdom or any diplomatic premises have been the object of
a conflict because of the application of this law.
In most cases, the withdrawal of acceptance by the Secretary of State would not
be clearly compatible with international law. The VCDR does not concede excep-
tions to the inviolability principle, other than the consent of the sending State.
There is no exception relating to the conduct of the sending State or embassy
personnel. Embassy personnel are to respect the laws of the receiving State, and
the premises are not to be used in any manner incompatible with the functions of
the mission (Article 3 VCDR), but that does not allow for the interpretation that
failure to comply with this obligation could result in loss of the inviolability of
embassy premises.10
Even if the United Kingdom were to sever diplomatic relations with another
country, it would still be required to respect and protect the premises of the mission.
The decision that still needs to be taken is to surmount the conflict of laws by
enacting new rules to preserve diplomatic privileges and guarantees for the work
of diplomatic agents. But those new rules must consider human rights, freedom
of expression and information among other rights, because even though it is abso-
lutely necessary to maintain diplomatic immunities and privileges, these privileges
should not be exercised to the detriment of fundamental rights or affecting them.

4. Conclusion

The VCDR was adopted to ensure peace, to guarantee the privileges and immuni-
ties of diplomats, and to ensure friendly relations among States by protecting dip-
lomatic missions through the inviolability of the premises and of course, immunity
of diplomats. This does not mean that it constitutes a way to commit crimes and
ultimately abuse by diplomats after which they could claim immunity to get
impunity—​nor was such a reading even conceived or considered.
Making a comparison with the case of Members of Parliament, it is the law and
generally accepted that when MPs commit crimes outside the parliamentary arena,
they are not covered by immunity. This could be an example for diplomats because
justice and human rights must prevail; it is the ultimate goal of the law, even if
it is necessary to impose corrective sanctions on diplomats who have committed
offences of any kind.
It is a reality that there will always be abuses by people vested with immunity.
The most common cases are perhaps traffic-​related offences, but there have been
also offences against human rights. Evidently there is a conflict between immunity
and access to justice, between human rights and terrorism.
These are aspects that must be carefully analysed under customary and conven-
tional international law, to offer member States reliable solutions to these conflicts
that are a part of a new reality in the twenty-​first century that needs to be regulated.

10 VCDR art 3.
178

178 Inviolability of Mission Premises: Contemporary Developments

Perhaps a sort of solution could be a new and specialized International

Diplomatic Council to decide about a diplomat’s responsibility while ensuring the
principles of inviolability and immunity. After a procedure in which all privileges
and rights of the defence are guaranteed, a determination could be made as to
whether or not there was a participation of the relevant diplomat in any kind of
offence or crime.
Judgment, however, should be rendered only in the sending State, if the
International Diplomatic Council concludes that there are sufficient reasons to
begin legal proceedings and/​or a trial in the sending State.
 179

12
The Non-​Customary Practice
of Diplomatic Asylum
Péter Kovács and Tamás Vince Ádány

1.  Introduction: The Silence of the Vienna Convention

The VCDR does not contain any explicit clause on diplomatic asylum. For authors
discussing the issue of asylum or refuge in diplomatic premises in the context of
the Convention, the usual starting point is immunity of diplomatic immovable
properties, namely Article 22 on the premises of the mission and Article 30 on the
diplomat’s residence.
There had been several proposals for a special, but in itself a very restrictive,
clause on shelter in the travaux préparatoires of the ILC:
Except to the extent recognized by any established local usage, or to save life or prevent
grave physical injury in the face of an intermediate threat or emergency, the premises of a
mission shall not be used for giving shelter to persons charged with offences under the local
law, not being charges preferred on political grounds.1
A more precise alternative formulation was also proposed by Sir Gerald Fitzmaurice:
Persons taking shelter in mission premises must be expelled upon a demand made in proper
form by the competent local authorities showing that the person concerned is charged with
an offence under the local law, except in the case of charges preferred on political grounds.2
The Soviet member of the ILC, Mr Grigory Tunkin argued for removing the ref-
erence to ‘political grounds’; however the enfolding debate was influenced by the
majority of the ILC which shared the point of view offered by JPA François. He
questioned the competence of the ILC to formulate an opinion on the matter, and
even contested the raison d’être of such a clause. The Dutch member warned of the
complexity of the issue and pointed out that the Rapporteur had formulated his
proposition without a preliminary study and emphasized that the proceedings of
the 6th Committee leading to the adoption of Resolution 685(VII) of the General

1  ILC Yearbook 1957 vol I, 54. See also: Eileen Denza, Diplomatic Law: Commentary on the Vienna
Convention on Diplomatic Relations (4th edn, OUP, Oxford 2016) 114.
2  ILC Yearbook 1957 vol I, 54.

The Non-Customary Practice of Diplomatic Asylum. Péter Kovács and Tamás Vince Ádány. © Péter
Kovács and Tamás Vince Ádány, 2017. Published 2017 by Oxford University Press.
180

180 The Non-Customary Practice of Diplomatic Asylum

Assembly had not revealed any intention to deal with diplomatic asylum.3 Doing
so would have meant an ultra vires act on behalf of the ILC4 and a decision was
made to delete the draft article ‘on the understanding that under modern inter-
national law and practice a failure by mission to comply with the rules on diplo-
matic asylum did not entitle the receiving State to enter mission premises’.5
Apparently the Members of the United Nations did not complain about this
deliberate silence either in the 6th Committee or in the General Assembly.6
In 1975, the ILC discussed the opportunity of putting on its agenda the ques-
tions of diplomatic asylum, but it was finally concluded that the governments were
not at all ready to adopt any concrete disposition on this subject, due to fears of
complicating the interstate relations in a context where even the customary basis
is doubtful.7
The Institute of International Law issued a resolution in 1950, offering a defin-
ition of asylum including territorial and diplomatic locations as well,8 but unlike
some other resolutions of the Institute this one seems to have failed to significantly
alter subsequent State practice.

2.  Historical and Contemporary Examples

2.1  Th
 e South American answer based on regional treaties,
regional custom, and ambiguous practice
2.1.1  The relevant South American treaty law
The South American approach is manifested in three conventions, namely the
1928 Havana Convention on Asylum,9 the 1933 Montevideo Convention on
Political Asylum,10 and the 1954 Caracas Convention on Diplomatic Asylum.11
Following the early example of the Treaty on International Penal Law12 signed
at Montevideo in 1889, the 1928 Havana Convention recognizes a limited form
of diplomatic asylum reserved for political offenders as a right or a humanitarian
gesture (as custom or applicable conventions or national laws prescribe it).13 As

3  ILC Yearbook 1957 vol I, 54–​55. 4 ibid. 5 ibid.

6  UNGA Res 1450 (1959) A/​RES/​1450(XIV).
7  ILC Yearbook 1977 vol II Pt 2, 129–​30; see also Patrick Daillier, Mathias Forteau, Nguyen Quoc
Dinh, Alain Pellet, Droit International Public (8th edn, LGDJ, Paris 2009), 751, para 460.
8  Arnold Raestad and Tomaso Perassi (rapporteurs), L’asile en droit international public (à l’exclusion
de l’asile neutre), (resolution) (11 September 1950) <http://​www.justitiaetpace.org/​idiF/​resolutionsF/​
1950_​bath_​01_​fr.pdf> accessed 6 June 2016.
9  Convention on Asylum (adopted 20 February 1928, entry into force 21 May 1929), 132 LNTS
323 (hereinafter ‘Havana Convention’).
10 Convention on Political Asylum (adopted 26 December 1933, entry into force 28 March
1935) 34 OAS Treaty Series A-​37 (hereinafter ‘Montevideo Convention’).
11  Convention on Diplomatic Asylum (adopted 28 March 1954 entry into force 29 December
1954) 1438 UNTS 101 (hereinafter ‘Caracas Convention’).
12  Treaty on International Penal Law (adopted at the First Inter-​American Conference on Private
International Law, 23 January 1889) OAS Official Records, OEA/​Ser.X/​l. Treaty Series 34, arts 15–​18.
13  Havana Convention art I.
 18

Historical and Contemporary Examples 181

the International Court of Justice observed: ‘the intention was (…) to put an end
to the abuses which had arisen in the practice of asylum and which were likely to
impair its credit and usefulness. This is borne out by the wording (…) which is at
times prohibitive and clearly restrictive.’14 The Montevideo Convention inter alia
rephrased the introductory articles15 and clarified the qualifying competence of
the host State.16
Generally, the Caracas Convention is considered as the reaction of the
Organization of American States to the Haya de la Torre judgment. Here, the
political motives of persecution are emphasized,17 the institution is stipulated as
a ‘right’18 and the urgency19 of the action is formulated in a much more precise
manner than before. The premises suitable for granting diplomatic asylum were
enumerated.20
From the three aforementioned treaties, the Caracas convention is the only one
to provide for diplomatic asylum as a genuine right of the State, while the Havana
and the Montevideo Conventions rather treat it as a special institution which
could be considered—​under certain circumstances—​as lawful.
From the South American practice, let us emphasize the communis opinio as for-
mulated by the ICJ, ie ‘asylum may be granted on humanitarian grounds in order
to protect political offenders against the violent and disorderly action of irrespon-
sible sections of the population’.21

2.1.2  Haya de la Torre’s famous refuge of the Columbian Embassy in Lima

As it is taught in all law faculties of the world, on 3 October 1948, Víctor Raúl
Haya de la Torre—​a Peruvian politician previously exiled several times—​tried to
take power through a military coup. After this attempt was crushed, the govern-
ment declared him and his party, the American People’s Revolutionary Alliance,
responsible for the plot. The Minister of Interior sent a ‘note of denunciation’
against Haya de la Torre to the Minister for the Navy who approved it and the
public prosecution qualified the object of the investigation as a crime of military
rebellion.
On 27 October 1948 a military junta seized power and ‘issued on November
4th a decree providing for Courts-​Martial for summary procedure in cases of rebel-
lion, sedition and rioting, fixing short time-​limits and severe punishment without
appeal’22 which was however not applied by the magistrates in the proceedings
against Haya de la Torre. The junta renewed the state of siege and the suspension
of constitutional rights, which was ordered on 4 October 1948 by the former, since
then reversed government.
On the 3 January 1949 Haya de la Torre entered the Colombian Embassy
and asked for refuge that he enjoyed until 1954. The dispute between Peru and

14  Asylum Case (Colombia v Peru) (Merits) [1950] ICJ Rep 282.

15  Montevideo Convention, art 1. 16 ibid art 2. 17  Caracas Convention art I.
18  ibid art II. 19  ibid arts V, VII, and IX. 20 ibid art I.
21  Asylum Case (Colombia v Peru) (Merits) [1950] ICJ Rep 282–​83. 22 ibid 272.
182

182 The Non-Customary Practice of Diplomatic Asylum

Colombia focused on the proper interpretation of the Havana Convention (the

only relevant international treaty on asylum in force between the two countries),
and the relevant custom as far as Colombia stated and Peru contested that the
ambassador had the right to qualify as political persecution the criminal procedure
launched against Haya de la Torre.
The International Court of Justice—​finding the effective South American prac-
tice ambiguous23—emphasized the strict interpretation of the criteria of urgency24
and warned against the abuses by the states granting asylum25 as well as by the
prosecuting states, ie territorial states.26 The Court observed that ‘the grant of asy-
lum by the Colombian Government to Victor Raúl Haya de la Torre was not made
in conformity with Article 2, paragraph 2 (“First”), of that Convention.’27
Colombia was incorrectly attesting ‘a right for Colombia, as the country granting
asylum, to qualify the nature of the offence by a unilateral and definitive decision,
binding on Peru’.28 Peru, on the other hand, was not able to claim ‘a violation of
Article 1, paragraph 1, of the Convention on Asylum signed at Havana in 1928’.29
Failing to find a case of urgency within the meaning of the Havana Convention,
the Court found that ‘the grant of asylum from January 3rd/​4th, 1949, until the
time when the two Governments agreed to submit the dispute to its jurisdiction,
has been prolonged for a reason which is not recognized by Article 2, paragraph 2,
of the Havana Convention’.30
Peru and Columbia did not understand how to execute the judgment, and that
is why they seized the Hague judges with a request for interpretation. The ICJ
refused to answer in merito31 and finally, the two states arrived at an agreement
granting a safe leave for Haya de la Torre who departed the Embassy in April 1954
and went into exile.

2.1.3  Refuge at the diplomatic missions during Pinochet’s coup d’état (1973)
The refuge secured by embassies during Pinochet’s coup (11 September 1973) shall
also be mentioned here, when about fifty Chilean nationals were admitted into the
Canadian Embassy and 500 into the Mexican Embassy in Santiago. The mission
of New Zealand and the Swedish Embassy were also active in this field.32 In retali-
ation, Edelstam, the Swedish Ambassador, was expelled by the military authorities
for this activity. Edelstam said that ‘the role of the Swedish Embassy is to save the
lives of people who are in danger’.33

23 ibid 286. 24 ibid 284. 25 ibid 286. 26 ibid 284. 27 ibid 288.

28 ibid. 29 ibid. 30 ibid 287.
31  Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v
Peru) (Judgment of 27 November 1950) [1950] ICJ Rep 395.
32  Kurt Bassuener, ‘The Fall and Rise of Chilean Democracy:  1973–​1989’, in Jeremy Kinsman
and Kurt Bassuener (eds), A Diplomat’s Handbook for Democracy Development Support (3rd edn, The
Centre for International Governance Innovation, Geneva 2013) 429.
33 ibid.
 183

Historical and Contemporary Examples 183

2.1.4  Manuel Noriega at the nunciature in Panama City

In December 1989, American commandos entered Panama in order to cap-
ture President Noriega. The dictator asked for temporary refuge at the Apostolic
Nunciature, where he was accepted, although the nuncio, Monsignore Laboa,
‘had at no moment contemplated granting General Noriega’s request for political
asylum’.34 The Holy See did not speak of asylum, but of ‘a person in refuge’.35
Apparently a nearby non-​diplomatic building was also used in those days for the
same purpose.36 Finally, after a five-​day stay, the nuncio convinced Noriega to
leave the nunciature and to surrender to the Americans.37

2.1.5  Pedro Carmona in the Columbian ambassador’s residence of Caracas

In 2009, Pedro Carmona, who had attempted to overthrow the Venezuelan leader
Hugo Chavez, was granted political asylum by the Colombian Government after he
had fled into the Ambassadors’ residence. According to BBC, Colombian Foreign
Minister Guillermo Fernández de Soto said the decision was taken ‘after careful
consideration’ and ‘in accordance with the norms of international law’. Venezuela’s
Foreign Minister, Luis Alfonso Dávila, has criticized the decision stating that the
fugitive businessman was not facing death or being politically persecuted, but was
under investigation for a criminal charge.38 Pedro Carmona was finally allowed to
leave Venezuela.

2.1.6  J osé Manuel Zelaya Rosales, the President of Honduras and his fellows
in the Brazilian Embassy of Tegucigalpa
The former president of Honduras had to flee his country after a court order to
detain him. He nonetheless returned with an apparent intent to retake power,
but instead he had to seek refuge in the building of the Brazilian Embassy on 21
September 2009. The crowd of his supporters in front of the embassy was finally
disbanded by the Honduran Government after initiating a curfew.39 The tense
situation adversely affected even the OAS.40

34 Larry Rochter, ‘The Noriega Case:  Panama City; Papal Envoy Asserts Psychology, Not
Ultimatum, Swayed Noriega’ New  York Times (New  York, 6 January 1990) <http://​www.nytimes.
com/​1990/​01/​06/​world/​noriega-​case-​panama-​city-​papal-​envoy-​asserts-​psychology-​not-​ultimatum-​
swayed.html> accessed 16 July 2016.
35  Kevin Buckley, Panama (Simon and Schuster, New York 1992) 250.
36  Rochter (n 34).
37  ibid. See Ivor Roberts, Satow’s Diplomatic Practice (6th edn, OUP, Oxford 2009) 103, para 8.12.
38  ‘Venezuelan Coup Leader Given Asylum’ BBC News World Edition (London, 27 May 2002)
<http://​news.bbc.co.uk/​2/​hi/​americas/​2009907.stm> accessed 17 July 2016.
39  Paul Behrens, ‘The Law of Diplomatic Asylum –​A Contextual Approach’ (2013) 35 Michigan
Journal of International Law 359–​60.
40  Rita Corsetti, ‘Trimestre internazionale: 1 luglio–​30 settembre 2009’ 76 Rivista di Studi Politici
Internazionali 620.
184

184 The Non-Customary Practice of Diplomatic Asylum

Honduras submitted an application against Brazil to the ICJ on 28 October

2009. This document indicated that ‘[Mr José Manuel Zelaya Rosales and] an inde-
terminate number of Honduran citizens’, who had taken refuge in the Brazilian
Embassy in Honduras since 21 September 2009, were ‘using [its] premises . . . as a
platform for political propaganda and thereby threatening the peace and internal
public order of Honduras, at a time when the Honduran Government is mak-
ing preparations for the presidential elections which are due to take place on 29
November 2009’. It was also stated that ‘[t]‌he Brazilian diplomatic staff stationed
in Tegucigalpa are allowing Mr. Zelaya and his group to use the facilities, services,
infrastructure and other resources in order to evade justice in Honduras’.41
Later, a friendly settlement was reached (on 7 January 2010 Zelaya was able to
leave the building with safe conduct to the Dominican Republic)42 and Honduras
manifested her intention to discontinue the procedure.43

2.3  Examples from European practice

2.3.1  Diplomatic shelter during the Spanish Civil War (1936–​1939)
Citing George Scelle, Denza refers to the large scale provision of shelter during
the Spanish Civil War (1936–​1939) particularly by the Swiss Embassy.44 The
Argentinian Embassy sheltered a politician, Mrs Pilar Primo de Rivera y Sáenz de
Heredia until she was able to join the Francoists,45 and the French Embassy did
the same for José Ungria Jiménez46 between 1936 and 1937.
Other published data from the Madrid National Historical Archive show that
thousands had found shelter in twenty-​six embassies, prominently in the diplo-
matic missions of Chile, Norway, Panama, Turkey, and Romania,47 and it is also
noted that the diplomatic corps adopted a nearly uniform stance on asylum.48
This example refers to sheltering en masse, mostly in territories under the People’s
Front Government (or Republican Government) but it is to be noted that the
Chilean Embassy continued sheltering people also after Franco’s victory.49 The

41  Certain Questions Concerning Diplomatic Relations (Honduras v Brazil) (Application) 28 October
2009 <http://​www.icj-​cij.org/​docket/​files/​147/​15935.pdf> accessed 17 July 2016, paras 5–​6.
42  Mica Rosenberg and others, ‘Dominican Republic Offers to Host Honduras’ Zelaya’ Reuters
(21 January 2010) <http://​uk.reuters.com/​article/​uk-​honduras-​zelaya-​idUKTRE60K02U20100121>
accessed 17 July 2016.
43  Certain Questions Concerning Diplomatic Relations (Honduras v Brazil) (Order of 12 May
2009) [2010] ICJ Rep 304.
44  Denza (n 1) 117.
45 Francisco J Romero Salvadó, Historical Dictionary of the Spanish Civil War (Rowman &
Littlefield, Scarecrow Press 2013 Plymouth) 266.
46 ibid 332.
47  Antonio Manuel Moral Roncal, ‘An Analysis of Foreign Diplomatic Aid to the Catholic Clergy
during the Spanish Civil War (1936–​1939)’ in (2013) 4 Religions 101.
48  Joe Robert Juárez, ‘Argentine Neutrality, Mediation, and Asylum during the Spanish Civil War’
(1963) 19 The Americas 392.
49  Jean Grugel and Monica Quijada, ‘Chile, Spain and Latin America: The Right of Asylum at the
Onset of the Second World War’ (1990) 22 Journal of Latin American Studies 353.
 185

Historical and Contemporary Examples 185

police authorities or the militias sometimes entered the diplomatic premises for the
purpose of capturing the people seeking for refuge.50

2.3.2  Historical examples from Hungary

In the mid-​twentieth century, Hungarian political elites underwent violent change
in a short course of time. Among the tragedies of the war, during the 1944 pro-​
Nazi coup and German occupation both sides sought temporary refuge in various
diplomatic premises, while thousands of persecuted Jews and other Hungarian
citizens were offered shelter sometimes by the same legation. Later, in the after-
math of the 1956 revolution, prominent leaders mostly failed in finding safe haven
in Budapest embassies.

2.3.2.1  Refuge for Prime Minister Kállay at the residence of the Turkish envoy
During the Second World War, Hungary was fighting for the Axis Powers, but
in the words of former American ambassador John Flournoy Montgomery it was
an ‘unwilling satellite’.51 In 1942, Miklós Kállay was appointed Prime Minister
by Governor Horthy with an official mandate of assuming continuity but with
another secret one to prepare Hungary’s surrender (if possible only to the British or
American powers in order to avoid Soviet occupation). The German secret services
were however informed by their own agents about the results of the ‘secret’ peace-​
negotiations and Hitler decided to occupy Hungary and to force Governor Horthy
to appoint a Quisling government.
The plan was executed on the 18–​19 March 1944 when Horthy was invited to
Klesheim Palace, near Salzburg, upon Hitler’s invitation. After Horthy’s return,
Kállay resigned and sought refuge at the residence of the Turkish envoy upon the
latter’s invitation, until 19 November 1944. Even if the building was encircled
by the Gestapo, Kállay could rather easily accept relatives and guests, but his cor-
respondence was photographed—​as it later became clear—​by the envoy’s butler,
an undercover agent of the Gestapo. When Turkey’s diplomatic relations termi-
nated with Germany, preserving this refuge became more and more difficult for
the envoy and finally Kállay decided to leave. He was aware of the fact that Bogdan
Filov—​former right wing, pro-​German and anti-​semitic Prime Minister and one
of the regents of Bulgaria who was a refuge at the Turkish legation in Sofia after
Bulgaria left the Axis and joined the Allies in September 1944—​had been surren-
dered to the Soviet Union.52

50  This happened vis-​à-​vis the Argentinian and the Peruvian embassies as well as the Nazi German
embassy under evacuation where Chilean, Romanian, Dutch, and Norwegian diplomats were pre-
vented from taking up shelter. See eg nn 46–​47.
51  John Flournoy Montgomery, Hungary, the Unwilling Satellite (Devin-​Adair Co, New York 1947).
52  Nicholas Kállay, Hungarian Premier: A Personal Account of a Nation’s Struggle in the Second World
War (Columbia University Press, New York 1954). The Hungarian original text is cited in this chapter:
Kállay Miklós, Magyarország miniszterelnöke voltam 1942–​1944, (Europa Historia, Budapest 1991
Budapest) 197–​212, 209. In fact, Filov asked for refuge not in the legation but at the envoy’s resi-
dence in the famous Chamkoria resort (today: Borovets) in the Rila Mountains on 8 September. The
envoy informed the new Bulgarian government led by General Georgiev about his status, and this new
186

186 The Non-Customary Practice of Diplomatic Asylum

After Kállay left the legation and surrendered, he was imprisoned and then
deported to Mauthausen and Dachau. He finally escaped in a rather adventurous
way from a transport and became an active member of the Hungarian expatriate
colony.

2.3.2.2 Refuge for Hungarian Nazi leader Szálasi at the German legation

in autumn 1944
When Governor Horthy wanted to regain his margin of manoeuvring in order
to confine his temptation to leave the Axis and to surrender to the Allies, the
Reich (continuously informed by pro-​Hitler politicians and high-​ranking mili-
tary officers) decided to overthrow Horthy’s regime. As a pre-​emptive meas-
ure, Horthy ordered the arrest of Ferenc Szálasi, the leader of the Hungarian
pro-​Nazi party, but the Hungarian police did not rush to execute the order.
Nevertheless, on 27 September 1944 the German legation offered shelter to the
Hungarian Nazi leader which he—​together with some close collaborators—​
accepted and enjoyed until 15 October 1944. On that day, the Governor’s cov-
ert plan of turning sides in the war was hindered by the Germans and their
pro-​Hitler allies in the Hungarian army. After Horthy was forced to resign,
Szálasi not only left the diplomatic premises but obtained the post of Prime
Minister as well as the title of ‘leader of the nation’.

2.3.2.3 Refuge for the Horthy family at the nunciature

On the morning of 16 October 1944, when SS troops surrounded the Royal
Palace in the Hungarian capital in order to force Governor Horthy to resign
and to annul the armistice and the declaration of breaking the alliance with
Germany, Horthy’s wife, daughter-​in-​law, and grandson along with their nanny
left the Palace upon his demand, and a car brought them into the neighbouring
building of the nunciature. Half an hour later, the SS entered the nunciature,
looked for hidden people, even in the underlying caverns, but left the build-
ing shortly thereafter, putting guards at the entrance. Veesenmayer, the German
envoy, soon arrived and asked the family to join the then resigned Horthy, who
had already been brought into the building of the German legation. After a
short discussion, the family surrendered and accepted German Schutzhaft (ie SS
internment to a castle near Weilheim).53

coalition government ordered his arrest on 12 September 1944. Filov was then transferred with other
arrested politicians to the Soviet army, and he was later sentenced to death in Bulgaria by the so-​called
People’s Court (extraordinary tribunal for liquidating political enemies) and executed in February
1945. The authors of this chapter thank Assistant Professor Dobromir Mihajlov for his valuable help
in the clarification of the events in Bulgaria, on the basis of the following book: Maria Zlatkova,
Bogdan Filov: Zhivot mezhdu naukata i politikata (Alteia, Sofia 2007) 294–​95.
53  Edelsheim Gyulai Ilona, Becsület és kötelesség (Honour and Obligation) (Europa, Budapest 2000)
330–​31 (the author is the Governor’s daughter-​in-​law whose memoirs were published some years
before her death).
 187

Historical and Contemporary Examples 187

2.3.2.4  Diplomatic missions sheltering Hungarian Jews in order to protect them
from deportation and murder during the Holocaust (1944): a series
of heroic gestures and humanitarian assistance
After Hungary was occupied by German troops on the 19 March 1944, a Quisling
government directed by Döme Sztójay was appointed by Governor Horthy. The
Sztójay government issued many decrees on the spoliation, ghettoization, and
deportation of the Hungarian Jews. The accelerated deportation effected the whole
countryside Jewish community between May and July 1944 and the Budapest
Jewry was forced to move into established ghettos waiting for their deportation
orchestrated by the Hungarian public administration, the Hungarian gendarmerie,
and Adolf Eichmann the Nazi ‘specialist’ of the so called Endlösung with his few
collaborators.
Foreign countries tried to stop these events, the outcome of which could be cal-
culated by those who could have read the so called ‘Auschwitz Protocol’, prepared
on the basis of information provided by two escaped prisoners.54 The Holy See,
the Swedish King and some governments exercised pressure on Horthy to stop the
deportation, and in Budapest the accredited diplomatic missions of neutral states
tried to save as many people from the Holocaust as possible. In these operations,
sheltering in diplomatic premises also had its role to play.
Despite the actions of Sztójay’s puppet government in rural Hungary, no ghetto
was yet established for the Jewish population of Budapest. Jewish residents of the
city had to move into so called ‘David shield’ (or ‘yellow star’) houses. At this
time these buildings were distributed throughout the city, one such building was
designated for each Budapest district. Horthy arrived at the decision not to let the
Budapest Jewry be deported; he removed Sztójay and appointed the Lakatos gov-
ernment (with the mission of forsaking the war). After the successful Hungarian
Nazi coup of 15 October 1944 organized by the German legation forced Horthy
to resign, the new government headed by Szálasi ‘as nation-​leader and Prime
Minister’ returned to the ghettoization as the antechamber to deportation.
The diplomatic missions of neutral countries in Budapest intervened with the
new government and succeeded to pass agreements that allowed them to continue
to issue ‘protecting papers’ (Schutzpass in German) for Jewish people who had
declared their intention to immigrate or had close family ties or economic interests
vis-​à-​vis their countries or countries represented by them55 if such countries had
no actual diplomatic representation in Budapest.

54  The Auschwitz Protocol, The Vrba-​Wetzler Report [Transcribed from the original OSI report of the
US Department of Justice & the War Refugee Board Archives] <http://​www.holocaustresearchproject.
org/​othercamps/​auschproto.html> accessed 30 September 2016.
55  This was the case with the missions of El Salvador. Its Consul in Bern, José Arturo Castellanos,
and his deputy George Mantello were in close contact with Carl Lutz, the Swiss Consul in Budapest
charged also with delivery of El Salvadorian ‘citizenship certificates’. Margie Burns, El Salvador, A
Rescuing Country (The International Raoul Wallenberg Foundation) <http://​www.raoulwallenberg.
net/​saviors/​others/​el-​salvador-​rescuing-​country> accessed 30 September 2016. In the same manner,
the Portuguese legation worked also for Brazil.
18

188 The Non-Customary Practice of Diplomatic Asylum

In order to better protect the persecuted people from the danger threatening
their lives—​having a legitimate fear of the insufficient protection offered only
by identity cards—​the missions also reached an agreement to the effect that they
could temporarily settle the holders of these documents in buildings under the
protection of their governments. Due to the masses of people concerned, trad-
itional diplomatic buildings were insufficient for this purpose and the legations
bought or hired buildings and flats that they put under their protection, and often
the diplomatic shield of the mission was also set up on the wall besides inscriptions
like ‘building under the protection of the Swiss government’ or ‘building under the
protection of the Kingdom of Sweden’.
The initiator of this idea was probably Carl Lutz, the Swiss Vice-​Consul and
Friedrich Born, the Representative of the International Committee of the Red
Cross (ICRC), but the world knows much better the name of Raoul Wallenberg
of the Legation of Sweden. We have to mention also the Portuguese Sampayo
Garrido and Carlos de Liz-​Teixeira Branquinho, the Spanish Angel Sanz Briz and
his successor (Italian by birth) Giorgio Perlasca and the nuncio Angelo Rotta. These
buildings were located mostly close to each other and they were mentioned in the
contemporary papers and legal texts as the ‘international ghetto’.56 On the other
hand, at different venues of the capital some sub-​sections of the diplomatic mis-
sions were open under various titles (eg Office of Enquiry for Disappeared; Office
of Relief and Humanitarian Assistance; ICRC orphanage) which could always hide
the persecuted persons, often as employees of the mission.
These shelters offered a certain level of protection from the chaos of the
Hungarian Nazi (‘Arrow Cross’) party rule when armed insurgents and members
of the Arrow Cross party and adjoining mob elements started the killings and the
pillaging. Often, the physical presence of the diplomats was also necessary to stop
the atrocities.
The exact number of people saved this way cannot be established with com-
plete certainty, but several tens of thousands rescues are attributed to these diplo-
mats. It is assumed that Carl Lutz saved 62,000 lives, Raoul Wallenberg 30,000,
Friedrich Born 15,000, Angelo Rotta 15,000, Giorgio Perlasca 5,200, Angel Sanz
Briz 5,000, Garrido and Branquinho 1,000. The humanism and bravery of these
men cannot be challenged and most of them are recognized as ‘Righteous Among
The Nations’ in the Israeli Yad Vashem Institute.
It is, however, important to assess how this extended interpretation of ‘diplo-
matic premises’ could have been reached during those tragic weeks, covering in
the end more than a hundred buildings.57 The special status of these buildings

56  For those who know Budapest, the ‘international ghetto’ or ‘small ghetto’ could be located to
the north from the Margit Bridge at the ‘Pest side’ of the capital, approximately half an hour’s walk
from the ‘large ghetto’.
57  According to László Karsai, the leading expert on the Hungarian Holocaust, seventy-​six build-
ings were protected by the Swiss legation and thirty-​six by the Swedish legation. The ICRC had
more than thirty orphanages. László Karsai, ‘Az ismeretlen Wallenberg (The Unknown Wallenberg)’
Népszabadság (Budapest, 3 April 2007).
 189

Historical and Contemporary Examples 189

cannot be explained only by the classic rules of diplomatic law. Veesenmayer, the
German envoy, advised the Hungarian Foreign Minister Kemény on 20 October
1944 to reject the proposals of the Budapest diplomatic missions as being contrary
to international law.58 Nevertheless, the Szálasi government entered into talks with
them probably out of their need for official recognition. As a coup d’etat govern-
ment widely known for coming into power with the military help of Germany,
the regime wanted to break its isolation: but in the end, only Spain and Turkey
recognized the government. According to newer research, Nuncio Angelo Rotta
probably misled the Szálasi government to believe that the Holy See also recog-
nized their position.59 Sweden succeeded in delaying the issue of recognition ad
infinitum. The diplomatic missions successfully used other tools as well, includ-
ing threats and pressure concerning the future; but bribery was also widely relied
on—​and there certainly were also people in the public administration and in the
police who acted according to their own conscience, religious belief, humanism,
or courage.

2.3.2.5  Prime Minister Imre Nagy and his fellows at the Yugoslav Embassy
of Budapest in 1956
The reformist communist Imre Nagy acted as Prime Minister of a coalition gov-
ernment during the 1956 Hungarian Revolution. As such, he inter alia introduced
a multi-​party system and declared Hungary’s neutrality. He condemned the Soviet
military invasion on 4 November and declared that ‘our troops are in combat’
but he fled with several members of his government as well as with their relatives
to the Embassy of Yugoslavia. The embassy received them without qualifying the
situation as asylum or refuge but tried to convince Nagy to step down, to recognize
the new Kadar-​government,60 and urged the revocation of the above-mentioned
decisions.61 On 22 November Nagy and his fellows left the embassy upon a prom-
ise of safe conduct, but their bus took them to a military airport and they were
forced to leave the country. From the next day they were being interned in Snagow
(Romania). From there Nagy and some of his comrades were brought back in April

58  ibid. See also Elek Karsai and László Karsai, Vádirat a nácizmus ellen–​Dokumentumok a magya-
rországi zsidóüldözés történetéhez 4. 1944. október 15–​1945. január 18 [Indictment against Nazism –​
Documents for the Study of the Persecution of Jews in Hungary, vol 4, From 15 October 1944 to 18
January 1945] (Ballasi, Budapest 2014) 21.
59  ibid 17. His motives were probably related to maintaining his capability to save further lives.
60  Janos Kadar had previously been a high-​ranking communist party member, for a few days even
a minister of Nagy’s government, but subsequently accepted to lead a Moscow-​oriented policy. He
stayed in power until 1988–​89 as General Secretary of the Communist Party.
61  During a secret meeting on 2–​3 November 1956 at the Adriatic Brioni island, the Yugoslav
leader Tito convinced the Soviet Premier Khrushchev to have trust in Kadar and apparently offered
also his cooperation to isolate Nagy for a transitional period. On 8 November 1956, the Yugoslav
Foreign Minister Ranković formally proposed that Nagy step down, thus contributing to the nor-
malization of the situation. For more details see eg the work of the former Yugoslav Ambassador to
Moscow:  Veljko Micunovic, Moscow Diary (Doubleday & Co, New  York 1980) cited by Johanna
Cushing Granville, The First Domino: International Decision Making During the Hungarian Crisis of
1956 (Texas A&M University Press, 2004) 105–​10, 109.
190

190 The Non-Customary Practice of Diplomatic Asylum

1957 to a criminal investigation and trial, leading to their execution in 1958 or to

long term prison sentences.

2.3.2.6 Cardinal Mindszenty at the US Embassy of Budapest

between  1956–​1971
József Mindszenty, Cardinal, Archbishop of Esztergom and ex lege first Archbishop
(ie Primate) of Hungary, was imprisoned by the Hungarian Nazis in 1944–​1945 as
well as by the Communists between 1949–​1955. After that he lived under house
arrest until he was liberated by a unit of the Hungarian army during the revolution
on 30 October 1956.
On 4 November 1956, when the Soviets invaded Hungary, József Mindszenty—​
together with Egon Turchányi his secretary and counsellor—​walked to the US
Embassy and asked for refuge. In his diary, the decision was explained by the fact
that this was the closest embassy to the Parliament building where he had been
invited by the Deputy Prime Minister. The subsequent events are recounted in a
similar way in the Mindszenty memoirs62 and the American diplomatic records as
published in Foreign Relations of the United States (FRUS).63
According to Mindszenty, he received Eisenhower’s permission for the grant
of ‘asylum’ within half an hour and Turchányi64 received the same within four
hours. There were signs that someone (Imre Nagy or one of his staff ) had warned
the Embassy on 3 November about this possibility.65 While they were waiting,
Mindszenty realized that a member of Imre Nagy’s government in the Revolution
was also present. He was Béla Kovács (former Secretary General of the Smallholders’
Party, arrested in 1947 by the Soviet Army and deported to the Gulags until 1955,
brought back to Hungary for the continuation of his sentence (1955–​April 1956)).
Kovács was also seeking refuge but on 5 November he was asked by the diplomats
to leave.66 He survived Communist retaliations, and even tried to come to terms
with the new government.

62  Mindszenty József, Emlékirataim (Apostoli Szentszék Kiadója, Budapest 1989). For an English
translation see: József Mindszenty, Memoirs by Jozsef Cardinal Mindszenty (Weidenfeld & Nicolson,
London 1974). Subsequent pagination follows the Hungarian original text.
63  John P Glennon, Edward C Keefer, Ronald D Landa, and Stanley Shaloff (eds), Foreign Relations
of the United States, 1955–​1957, Eastern Europe, Volume XXV (United States Government Printing
Office, Washington, 1990) <https://​history.state.gov/​historicaldocuments/​frus1955-​57v25> accessed
26 September 2016.
64  Turchányi eventually left the building, but during an attempt to flee Hungary in the company of
a US citizen, he could not escape arrest and was condemned to life imprisonment—​John P Glennon,
Edward C Keefer, Ronald D Landa, Stanley Shaloff (eds), Foreign Relations of the United States, 1955–​
1957, Eastern Europe, Volume XXV (United States Government Printing Office, Washington, 1990)
Document 163 Editorial Note, p 387. He was pardoned in 1963 and died a few years later.
65  Mindszenty (n 60) 443–​44 (the word ‘asylum’ was used by Mindszenty). See also 163 Editorial
Note, FRUS XXV 387.
66  Wailes, the Chargé d’affaires telegraphed as follows: ‘Kovacs apparently left but may come back
and I will let him in vestibule with his lieutenants with firm understanding it is tentative and no asy-
lum is granted.’ See: 162 Transcript of a Teletype Conversation Between the Legation in Hungary and the
Department of State, November 3–​4, 1956 in FRUS XXV 383–​84.
 19

Historical and Contemporary Examples 191

The FRUS documents make reference also to a warning from Washington
that Mindszenty and Turchányi would come and ‘were about to seek asylum at
the American Legation’. When asked for his advice, Bearn replied that while the
United States opposed asylum in principle, nevertheless it was justified in this case
since ‘it involved hot pursuit endangering human life’.67 One FRUS reference
cites a cable message as follows: ‘Cardinal Mindszenty wishes to seek asylum with
Legation. Approval granted.’68
It is important to cite the contemporary American perception of diplomatic asy-
lum described in FRUS. On November 8, Bearn sent a memorandum to Murphy
on the subject of asylum for the Cardinal. He noted that the United States in
the past had ‘strongly disapproved of the principle of diplomatic asylum’ but had
been willing to afford temporary refuge in order to save human life. As an author-
ity Section 225.2 of the Foreign Service Regulations (‘Restrictions on Extending
Asylum’) was cited. It reads:
As a rule, a diplomatic or consular officer shall not extend asylum to persons outside
of his official or personal household. Refuge may be afforded to uninvited fugitives
whose lives are in imminent danger from mob violence but only for the period during
which active danger continues. Refuge shall be refused to persons fleeing from legitim-
ate agents of the local government. In case such persons have admitted to the diplomatic
or consular premises, they must be surrendered or dismissed from such mission or con-
sular office.
Since the Cardinal’s life had been in jeopardy as he was in flight from a foreign
invader, the provision of sanctuary was considered justified.69
Notes from several White House brainstorming sessions also illustrate the
ambiguity of the US position in the matter of diplomatic asylum: ‘… Cardinal
Mindszenthy [sic] is in our legation. We will refuse to turn him over. We will try
to keep him quiet. Our international position is not too strong on trying to safe-
guard him.’70
As it is well known, Mindszenty lived at the Embassy till 1971 and the respect-
ive chapters of his memoirs are very bitter, especially concerning the rules isolating
him and permitting contacts in Hungarian almost exclusively with his mother.
(However, in the first days of his admission, the American diplomats even organ-
ized a press conference for him.) He was forbidden to meet the Hungarian employ-
ees of the Embassy. However, he could perform his functions as a priest at the
Embassy and he could receive visits of other Ambassadors or diplomats accredited
in Hungary.
Refuge was granted until the conclusion of an arrangement with the Hungarian
authorities, but this depended on the success of discrete negotiations between

67  163 Editorial Note, FRUS XXV 386. 68  ibid 386–​87. 69 ibid 387.
70  The meeting at the White House took place on 5 November 1956. Participants were Eisenhower,
Nixon, Phleger, Hagerty, Goodpaster. The quote reflects Phleger’s assessment. 168. Memorandum of
a Conference With the President, White House, Washington, November 5, 1956, 10:20 a.m. in FRUS
XXV, 394.
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192 The Non-Customary Practice of Diplomatic Asylum

Hungary and the Holy See. The outcome of these talks was that the Roman Curia
invited Mindszenty to move to Vienna or to Rome. In the meantime, it declared
the seat of the Archbishop of Esztergom to be vacant.
Mindszenty’s isolation was premeditated and sometimes it can be felt also as a
tool to accelerate the Cardinal’s decision on the acceptance of the offer of Rome
to leave Hungary under the aforementioned conditions. (From time to time, it
was mentioned that it would be useful to convince Mindszenty to accept trans-
mitting verbal messages through American diplomats instead of sealed letters.71)
Mindszenty did not want to submit himself to such a control, and in order to
avoid conflicts he restricted voluntarily the number of his communications. At
other parts of the memoirs, it is revealed that Mindszenty’s returning tubercu-
losis was considered a threat to the health of the staff of the legacy and this fact
made his isolation from the American staff even more pronounced.72 In fact,
Mindszenty felt more and more the signals that the US government—​acting in
the policy of the détente—​would be glad if he would have been able to take the
decision to leave the building.73

2.3.3 Diplomatic shelter granted by embassies during the 1968 invasion

of Czechoslovakia by troops of the Warsaw Pact
The Canadian Embassy in Prague sheltered some foreign but mostly Czechoslovak
citizens ‘due to genuine fears of concentration of foreign armed forces in the city’
when the invasion crushed the so called Prague Spring (1968) of Dubček.74
The official Canadian position was previously formulated in abstracto as early
as 1961:
… our consulates and diplomatic missions abroad may not grant asylum on the premises
of a post except in extra-​ordinary circumstances. The sort of circumstances that we have in
mind is where temporary asylum would be granted on humanitarian grounds to a person,
whether a Canadian citizen or not, if he is in imminent personal danger to his life during
political disturbances or riots, with care being taken to ensure that the humanitarian char-
acter of the mission’s intervention should not be misunderstood.75

71 The State Department wanted to avoid transferring communications of unknown content

between the Cardinal and the Vatican, as well as to avoid censoring such letters. See (n 64)  227.
Memorandum From the Deputy Assistant Secretary of State for European Affairs (Beam) to the Deputy
Under Secretary of State for Political Affairs (Murphy) in FRUS XXV, 555–​56.
72  Mindszenty (n 60) 479. 73  ibid 473, 479.
74  Laura Madokoro, ‘Good Material:  Canada and the Prague Spring Refugees’, in (2010) 26
Refuge 161. Simona Leonavičiüte, Diplomatic Asylum in the Context of Public International Law
(Mikolas Romeris University, Faculty of Law, International Law Joint Master Program, Thesis,
Vilnius 2012).
75  Originally published by Jean Gabriel Castel, International Law Chiefly as Interpreted and Applied
in Canada (3rd edn, Butterworth, London 1976) 519–​20 cited by Cole Charles V, ‘Is There Safe
Refuge in Canadian Missions Abroad?’ (1997) International Journal of Refugee Law 659, cited also
by Leonavičiüte (n 74) 47.
 193

Historical and Contemporary Examples 193

2.3.4 Diplomatic shelter for Soviet dissidents in Moscow

Members of the Pentecostal religious community long campaigned against the
discrimination and harassment they faced in the Soviet Union. In 1963 a group of
them pleaded for asylum at the US Embassy in Moscow, but they left the building
after a Soviet promise to relieve their situation. Instead, prison sentences, detention
in psychiatric hospitals, and the removal of their children followed.76 Some mem-
ber of this group, frustrated by their continued failure to emigrate (the Vashchenko
family and the Chmykhalov family) entered the US Embassy of Moscow again
in 1978 and lived in its the basement for several years. In 1983, Soviet consent
to their emigration was at last acquired.77 The Soviet Union agreed to resolve the
matter, if it was done as ‘quietly’ as possible.78 Some family members first left the
Embassy, returned to their homes and applied for visas to the leave the Soviet
Union, which were finally granted for all of them.

2.3.5 Romanian citizens belonging to the Hungarian minority in the

Hungarian Embassy of Sofia (1988–​1989)
In the last years of the rule of Nicolae Ceauşescu, the Romanian communist dic-
tator, a general policy was launched under the neutral title of ‘systematisation pol-
icy’ threatening the disappearance of the diverse cultural and mainly architectural
monuments of the multicultural Romania. The different linguistic minorities of
Transylvania were deeply concerned by this policy and the inherent danger of the
demolition of their traditional houses and villages and their forced resettlement in
concrete block dwellings of neighbouring cities. Moreover, the Hungarian minor-
ity’s contacts with Hungary and family members living on the other side of the
border were continuously hindered. (At the same time, Romania gave the possibil-
ity of emigration to the German speaking minority as well as to the Jewish minor-
ity pending a per capita payment by the Federal Republic of Germany (FRG) and
Israel under the title: ‘compensation for costs of schooling’.)
Against such a background twelve people belonging to the Hungarian minor-
ity from Romania took shelter in the Hungarian Embassy in Sofia, in order to get
the opportunity of free immigration to Hungary. They stayed there between 14
September 1988 and 17 February 1989, when according to an ad hoc Hungarian-​
Bulgarian-​ Austrian-​ICRC agreement, they were brought through Vienna to
Hungary by a plane of Austrian Airlines.

76  Christopher Marsh, Religion and the State in Russia and China: Suppression, Survival, and Revival
(Continuum, New York 2011) 82, 103.
77  See eg ‘Siberian Seven’, Records of the Hearing before the Subcommittee on Immigration Refugees and
International Law of the House of Representatives, 16 December 1982, 1–​63; see further: Leonavičiüte
(n 74).
78  George P Shultz, Turmoil and Triumph: Diplomacy, Power, and the Victory of the American Deal
(Maxwell Macmillan, New York 1993, Simon and Schuster e-​book edition 2010) 170.
194

194 The Non-Customary Practice of Diplomatic Asylum

2.3.6 East German nationals at the central European embassies in 1989

When Gorbachev’s perestroika challenged the credibility of the hard liner com-
munist rule, hundreds of East German citizens wanted to ‘emigrate’ to the Federal
Republic of Germany which had formerly been allowed to very few people. A cata-
lyst event for these attempts was the highly publicized case of Bernhard Marquardt,
who was allowed to leave East Germany after seeking refugee in the US Embassy
in East Berlin.79 Various measures by the embassies and also by the East German
authorities made it more difficult to apply for asylum in East Berlin diplomatic
buildings, so many applicants entered into different diplomatic missions (mainly
the West German embassies in Budapest, Prague, and Warsaw) in order to wait for
an ‘exit visa’ from these countries. Some of them applied for political refugee sta-
tus but most of them wanted only to leave East Germany. Their number reached
100–​150 in each mission and they at least hindered if not completely paralysed
the ordinary functioning of the diplomatic and consular buildings.80 That is why
eg in Budapest, the West German embassy had to rent some neighbouring houses
from private persons in order to be able to normally host the people seeking for
emigration.
Finally, the Hungarian government made an agreement with the ICRC and
West Germany, to bring 101 East Germans by plane to Vienna on 24 August
1989. Hundreds of East Germans waiting in non-​diplomatic buildings, such as
hostels and camping sites were also able to leave Hungary when the border was
opened at the Pan-​European Picnic (Sopron, 19 August 1989). As for the East
German citizens in the diplomatic missions in Prague, an agreement was reached
to the effect that they had to return formally to their country for some days with
the promise that their application for emigration visas would be accepted and that
they would soon be able to continue their trip to West Germany. (Thousands of
East Germans wanted to jump on the special trains but such attempts were bru-
tally obstructed.) The same ‘special train’ operation was used also in Warsaw.81

2.3.7 Albanians in the embassies in Tirana 1989

A similar situation occurred in Tirana in the last months of the Communist dic-
tator Enver Hodža and hundreds of Albanians asked for refuge and emigration
possibility.82 According to Leonavičiüte, 6,000 people ran into the Belgian, Dutch,
Norwegian, Polish, and Turkish embassies.83 The police forces made futile attempts
to prevent them from entering, and finally their individual lot was solved by the
sudden collapse of the regime.

79  John Benjamin Roberts, ‘Diplomatic Asylum:  An Inappropriate Solution for East Germans
Desiring to Move to the West’ (1987) 1 Temple International and Comparative Law Journal 236–​37.
80  ibid 231–​34. 81  Denza (n 1) 117. 82 ibid.
83  Leonavičiüte (n 74) 48.
 195

Historical and Contemporary Examples 195

2.3.8 Refuge in the Romanian Embassy in Chişinău

In September 2008, the Romanian Embassy in Chişinău was host to the sons of a
Moldavian politician, Sergiu Mocanu, chief counsellor of Vladimir Voronin, the
former head of State of Moldova. They were criminally prosecuted for a brawl in a
disco but they claimed to be persecuted because of their father’s political activity.84
The Mocanu boys stayed for a year in the building of the Embassy that they left
only when a Moldavian court changed the pre-​trial detention warrant to a warrant
on house arrest.85

2.3.9 Julian Assange in the London Embassy of Ecuador

The Australian national Julian Assange has become famous for having created the
WikiLeaks portal where he published thousands of classified, secret, and top secret
documents, most of them written by American diplomats on their receiving States
and the politicians and policies thereof. The published documents mentioned
intelligence activities also within NATO allies and a general taping of governmen-
tal and private phone conversations. Many documents concerned Camp Delta of
Guantanamo and the treatment of its detainees.
Despite evident warnings, Assange continued and enlarged his activity. In
2010, he was under investigation in the United States86—​where previously crim-
inal investigations against army or intelligence community defectors Bradley
(Chelsea) Manning and Edward Snowden were also launched, who both leaked
mass amounts of information to the public. Assange was also wanted in Sweden,
where an Interpol arrest warrant was issued against him because of sexual offences
allegedly committed during his temporary stay in Sweden. According to other
sources,87 a European Arrest Warrant was issued for sexual molestation and rape

84  See European Court of Human Rights, Mocanu v Moldova (Decision) no 24163/​09.
85 ‘Sons of Sergiu Mocanu Quit Romanian Embassy’ Moldova Azi (Chişinău, 23 September
2009) <http://​www.azi.md/​en/​story/​5964> accessed 15 September 2016; ‘Moldovan Politician’s Sons
Leave Romanian Embassy after One Year’ Moldova.org (Chişinău, 24 September 2009) <http://​www.
moldova.org/​en/​moldovan-​politicians-​sons-​leave-​romanian-​embassy-​after-​one-​year-​203694-​eng/​>
accessed 15 September 2016.
86  Ellen Nakashima, Jerry Markon and Andrew Blake, ‘WikiLeaks Founder Could Be Charged
under Espionage Act’ The Washington Post (Washington, 30 November 2010) <http://​www.washing-
tonpost.com/​wp-​dyn/​content/​article/​2010/​11/​29/​AR2010112905973.html> accessed 15 September
2016, Elisabeth Bumiller, ‘Army Broadens Inquiry Into WikiLeaks Disclosure’ The New York Times
(New York, 30 July 2010) <http://​www.nytimes.com/​2010/​07/​31/​world/​31wiki.html> accessed 15
September 2016.
87 Anders Rönquist (Ambassador, Swedish Ministry for Foreign Affairs) ‘Communication from
Working Group on Arbitrary Detention, Reference: G/​SO 218/​2’ (Stockholm, 3 November 2014)
UF2014/​58264/​UD/​FMR, Alison Duxbury, ‘Assange and the Law of Diplomatic Relations’ in (2012)
16:32 ASIL Insights <https://​www.asil.org/​insights/​volume/​16/​issue/​32/​assange-​and-​law-​diplomatic-​
relations> accessed 20 July 2016, Steven Erlanger ‘Julian Assange to Be Questioned by Sweden Over
Rape Claim, Ecuador Says’ The New York Times (New York, 11 August 2016) <http://​www.nytimes.
com/​2016/​08/​12/​world/​europe/​julian-​assange-​sweden-​ecuador.html?_​r=0>. ‘Julian Assange Sex Assault
Allegations: Timeline’ BBC News (London, 5 February 2016) <http://​www.bbc.com/​news/​world-​
europe-​11949341> accessed 20 July 2016.
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196 The Non-Customary Practice of Diplomatic Asylum

and Assange unsuccessfully applied against the allegations before the Svea Court
of Appeal (in Sweden) on 24 November 2010.88 Probably on 19 June 2012 he
entered the building of the Embassy of Ecuador in London where he has been
living since then. According to Ricardo Patiño, Minister of Foreign Affairs, Mr
Assange had applied for political asylum and the government was considering the
request.89 Some days later, it was accepted.90
Several times he attended press conferences from the window of the embassy. At
the time of the closure of the present text, he is still staying in the same premises.

2.4 Asian examples
2.4.1 The Persian Shah’s wives at the British Embassy at the end of the
nineteenth century
Satow refers to a case when 300 wives of the Shah entered the building of the British
legation in order to protest against the Shah’s decision to marry the daughter of his
gardener. The details were written in the biography of Mortimer Durand serving in
Tehran between 1894 and 1900 and Satow’s analysis is that it was rather a case of
collective shelter.91 According to Denza, we should see here that ‘taking shelter in a
foreign mission to emphasize grievances was particularly a custom in Persia’.92 In this
sense, it was rather a solemn demonstration of the upset of the Emperor’s wives than
a real will to seek for protection.

2.4.2 A Soviet soldier in the US Embassy of Kabul

The Soviet Army invading Afghanistan in 1979 had defectors and captured
soldiers: surrender was, however, punishable as a military crime. Aleksandr
Vasilyevich Sukhanov, a Soviet soldier wanted to return to the Soviet Union but
without any punishment and persecution. He asked for refuge in the American
Embassy of Kabul on 31 October 1985 and relatively soon, on 5 November 1985,

88  UNHCR Working Group on Arbitrary Detention, ‘Opinion No. 54/​2015 Concerning Julian
Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland)’ (22 January
2016) UN Doc A/​HRC/​WGAD/​2015.
89  Ministerio de Relaciones Exteriores y Movilidad Humana, Ecuador, ‘Joint Press Conference
Quito –​London with Julian Assange: Statement by Minister of Foreign Affairs Ricardo Patiño’ (9 July
2014) <http://​shanghai.consulado.gob.ec/​joint-​press-​conference-​quito-​london-​with-​julian-​assange-​
statement-​by-​minister-​of-​foreign-​affairs-​ricardo-​patino/​> accessed 20 July 2016.
90 Ministerio de Relaciones Exteriores y Movilidad Humana, Ecuador ‘Statement of the
Government of the Republic of Ecuador on the Asylum Request of Julian Assange –​News Release
No. 042’ (10 May 2013) <http://​cancilleria.gob.ec/​statement-​of-​the-​government-​of-​the-​republic-​of-​
ecuador-​on-​the-​asylum-​request-​of-​julian-​assange/​?lang=en>, Arturo Wallace, ‘Julian Assange:  Why
Ecuador is Offering Asylum’ BBC News (London, 16 August 2012) <http://​www.bbc.com/​news/​
world-​europe-​19289649> accessed 20 July 2016.
91  Roberts (n 37) 111 para 8.26. 92  Denza (n 1) 116.
 197

Historical and Contemporary Examples 197

an American-​Soviet agreement was reached about the safe return in order not to
hamper the meeting between Reagan and Gorbachev.93

2.4.3 North-​Korean defectors in embassies accredited to China and

the Chinese position
Dozens of North Koreans have tried to leave one of the most militarized coun-
tries of the world. Because the immediate neighbourhood of foreign embassies in
Pyongyang is strongly protected and controlled, those who would like to emigrate
from the Communist country, try to profit from tourist trips in China, virtually
the only foreign country the visit of which is allowed by the regime. The defectors
tried to enter the Japanese, Canadian, South Korean, and US embassies:  some-
times they succeeded, sometimes they did not. As we know from reports of Human
Rights Watch, the Chinese police sometimes tolerated these acts in Beijing and in
some consular towns, but sometimes they intervened very strongly. For example,
on 8 May 2002 the Chinese police entered Japan’s consulate of Shenyang for the
capture of five North Koreans who had sought refuge. In 2002 some refugees were
arrested by Chinese public security officers when they tried to get into Japanese,
Canadian, South Korean, and US diplomatic missions.94 The Chinese courts
released them on humanitarian grounds and did not put any obstacle in the path
of their emigration to South Korea.95
In 2002, two defectors managed to enter the US Embassy, fifteen of them
entered the German Embassy, and twenty-​five the Spanish mission.96 (In Vietnam,
nine North Koreans were sheltered by the Danish Embassy in Hanoi.)97
The Chinese authorities issued at that time a document clarifying their position
vis-​à-​vis diplomatic refuge: they do not recognize it and moreover they expected
the cooperation of the embassies in putting an end to this form of emigration and
asylum seeking.98

93 Leonavičiüte (n 74)  46. See also ‘Soviet Soldier Leaves US Embassy in Afghanistan’ The
New York Times (New York, 5 November 1985) <http://​www.nytimes.com/​1985/​11/​05/​world/​soviet-​
soldier-​leaves-​us-​embassy-​in-​afghanistan.html> accessed 20 July 2016; ‘Soviet Soldier Goes Back To
Army In Kabul’ KNT News Service (Orlando, 5 November 1985); ‘Soviet Soldier Goes Back to Army
in Kabul’ Orlando Sentinel <http://​articles.orlandosentinel.com/​1985-​11-​05/​news/​0340230089_​1_​
sukhanov-​soviet-​soldier-​soviet-​union> accessed 20 July 2016.
94  Human Rights Watch (hereinafter ‘HRW’), The Invisible Exodus: North Koreans in the People’s
Republic of China (Report) vol 14 No 8 (November 2002) <https://​www.hrw.org/​reports/​2002/​north-
korea/​norkor1102.pdf> 28.
95 ibid 31, Suh Dong-​ man, DPRK Briefing Book:  North Korean Defectors and Inter-​ Korean
Reconciliation and Cooperation (7 May 2002) <http://​nautilus.org/​publications/​books/​dprkbb/​refu-
gees/​dprk-​briefing-​book-​north-​korean-​defectors-​and-​inter-​korean-​reconciliation-​and-​cooperation/​>
accessed 20 July 2016.
96  HRW (n 94) 3, Leonavičiüte (n 74) 48. 97  Leonavičiüte (n 74) 48.
98  Letter from Chinese Ministry of Foreign Affairs to Foreign Embassies, (31 May 2002) published
in HRW (n 94) 35.
198

198 The Non-Customary Practice of Diplomatic Asylum

2.4.4  Chen Guangcheng, the Chinese activist

Chen Guangcheng was a civil rights activist in rural areas of the People’s Republic
of China. After two years of house arrest, he managed to find his way into the
United States Embassy in Beijing in April 201299 and enjoyed its hospitality until
mid-​May 2012. Originally, he did not wish to leave China, and apparently avoided
the use of the word ‘asylum’.100 Finally, according to a Chinese-​US agreement, he
was able to leave the Embassy and fly to the US.101 He started to attend law school,
and he still maintains his involvement in human rights advocacy, proving that exile
does not necessarily result in silence of the refugee.102

2.5 African examples
2.5.1 The Durban Six
Under the apartheid regime, in September 1984, six prominent South African
personalities of various anti-​apartheid movements and organizations asked for ref-
uge at the British consulate in Durban. The British consul did not want to keep
them indefinitely and they asked for refuge at the embassies in Pretoria of the
United States, France, Netherlands, and Germany which however refused them.
The British consul convinced them to leave the consular building even if no safe
conduct was promised by the apartheid government. With one exception, the
police arrested them when leaving the consulate. They were charged with treason,
but subsequently acquitted.103

2.5.2 Meriam Ibrahim at the US Embassy in Sudan

A more recent example is that of Meriam Ibrahim (or Mariam Yahia Ibrahim
Ishag), a Sudanese woman married to a Christian man and sentenced to death
because her marriage was considered apostasy under Sudanese law. A massive inter-
national protest followed the preparation and the subsequent phases of this ‘crim-
inal procedure’, even more so after the judgment was unsealed, and finally a court
ordered her release. Even when released from the jail and death row where she gave
birth to her second child, she was prevented from leaving the country to go to the US.

99  Duxbury (n 85).

100 Shalini Bhargava Ray, ‘Optimal Asylum’ (2013) 46 Vanderbilt Journal of Transnational
Law 1217.
101  Malcolm Moore and Peter Foster ‘Deal Over Blind Activist Chen Guangcheng Agreed Between
US and China’ The Telegraph (London, 4 May 2012) <http://​www.telegraph.co.uk/​news/​worldnews/​
asia/​china/​9246981/​Deal-​over-​blind-​activist-​Chen-​Guangcheng-​agreed-​between-​US-​and-​China.
html> accessed 20 July 2016.
102  Lijia Zhang, ‘Banished, but Not Gone’ The New York Times (New York, 29 April 2013) <http://​
www.nytimes.com/​2013/0​ 4/3​ 0/o​ pinion/​global/​Chen-​Guangcheng-​banished-​but-​not-​gone.html?rref
=collection%2Ftimestopic%2FChen%20Guangcheng> accessed 30 September 2016.
103  Susanne Riveles, ‘Diplomatic Asylum as a Human Right: the Case of the Durban Six’ (1989)
11 Human Rights Quarterly, 139–​41.
 19

Lessons to Be Taken From the Examples 199

The next day she was accepted at the US embassy of Khartoum on 26 June 2014,
and at the end of July, she and her family were able to leave Sudan with the involve-
ment of the Italian Government to finally arrive in New Hampshire.104

3.  Lessons to Be Taken From the Examples

The diplomatic premises of the United States abroad are probably among the most
popular choices of asylum seekers, and the number of documented cases allow
us to examine the considerations of the sending State of the targeted diplomatic
mission. The most famous case was probably that of Cardinal Mindszenty’s refuge
at the Budapest mission between 1956–​1971. Several other, more recent, cases
on admission by American diplomats have also been presented under the points
dedicated to the African or Asian examples.
A document became recently available in a rather unusual way, which seems to
summarize the current US approach in the matter. The Guardian newspaper pub-
lished in 2010 this document,105 allegedly signed by then Secretary of State Hillary
Clinton. This document106 seems to be authentic mostly because of its inherent
logic supported by its international legal and political background.107
For our current observations the most important aspects of this document are
in paras 40–​42 and 46–​48 of Section E on ‘Temporary Refuge –​Cautions and
Guidance’. Most importantly, the document clearly states that the United States
and most other countries do not recognize the concept of diplomatic asylum or
accept that the granting of refuge in an embassy is an authorized use of diplomatic
facilities.108 If someone asks permission to stay in a US Governmental facility
located in a foreign country, then this is considered as a request for temporary ref-
uge. While the right to asylum is denied by this document, the possibility of such
requests is implicitly accepted—​as a possible reason of such requests the document
identifies that those persons act in an ‘erroneous belief that safe passage out of
the host country will be assured’. This however is seen as a highly unlikely scen-
ario: instead, a protracted stalemate, a possibly adverse impact on US interests, and

104 ‘Meriam Ibrahim Freed Again in Sudan, Flees to U.S. Embassy’ NBC News (27 June
2014)  http://​www.nbcnews.com/​news/​world/​meriam-​ibrahim-​freed-​again-​sudan-​flees-​u-​s-​embassy-​
n142316, and ‘Meriam Ibrahim Freed from Death Row in Sudan’ <https://​www.amnesty.org.uk/​
meriam-​ibrahim-​freed-​death-​row-​sudan-​apostasy-​pregnant-​mother> accessed 20 July 2016.
105  ‘US Embassy Cables: How to Handle a Defector—​A How-​to Guide for Embassy Staff ’ The
Guardian (London, 28 November 2010) <https://​www.theguardian.com/​world/​us-​embassy-​cables-​
documents/​235430> accessed 20 July 2016.
106  ibid. See the subject designation in the header: ‘Walk-​in Guidance for 2009: Handling Foreign
National Walk-​Ins, Defectors, and Asylum Seekers’.
107  The assessment of the authenticity is also aided by similarities found by comparing this text and
the diplomatic records from the Foreign Relations of the United States (FRUS) documentation, cited
in the Cardinal Mindszenty case (nn 63–​70).
108  ‘US Embassy Cables: How to Handle a Defector –​A How-​to Guide for Embassy Staff’ The
Guardian (London, 28 November 2010) para 40 <https://​www.theguardian.com/​world/​us-​embassy-​
cables-​documents/​235430> accessed 20 July 2016.
20

200 The Non-Customary Practice of Diplomatic Asylum

even some deterioration of diplomatic relations is foreseen.109 Consequently, the

persons requesting temporary refuge should be informed that their safe conduct or
their entry into the US cannot be granted, and also that their stay may be a further
source of danger for themselves.110
Having said all that, temporary refuge may be granted in instances in which
compelling evidence shows that there is an imminent, immediate, and exception-
ally grave physical danger.111 In those exceptional cases, where temporary refuge
is considered by the diplomatic post, a set of seven questions should also be taken
into account, assessing the risks and benefits for the US when accepting the person
in the facilities.112
In summary, humanitarian urgency seems to be the basic consideration for the
exceptional admittance of persons in imminent danger, due to manifest political
or racial persecution by the authorities or by a mob.
Laypersons generally believe that by entering a diplomatic facility they miracu-
lously leave their country and arrive in a new one. As untrue this common mis-
understanding is, it still can be one reason why many attempts are made to obtain
diplomatic asylum in conflict areas around the world.113 Another more solid
motivation is the relative safety offered by these premises. The above series of his-
torical examples do not enable us to outline a universal customary regulation,
however certain conclusions can still be stipulated.
The adoption and the entry into force of the 1961 Vienna Convention did not
change significantly the attitude of States towards diplomatic asylum and diplo-
matic shelter. Examining various regional practices, the lack of consistency shows
that, contrary to common assumptions, no major difference is perceivable between
the practices of the States of South America and of other continents.114
Sending States do not want to complicate their relations vis-​à-​vis receiving
States (and generally even less to intervene into domestic matters) and that is why:
(i) They try to reduce the duration of sojourn for the strict minimum possible.
(ii) If feasible, they try to convince or to influence the asylee to leave the dip-
lomatic premises upon his own free decision.
(iii) They isolate their guests from active contacts.115

109  ibid para 41. 110  ibid para 42. 111  ibid paras 46–​47

112  ibid para 48.
113 See Congressman Romano Mazzoli’s question in the ‘Siberian Seven’ case:  ‘Is an Embassy
Abroad Considered U.S. Soil?’ United States Senate Committee on the Judiciary, Subcommittee
on Immigration and Refugee Policy, Hearing before Subcommittee on Immigration Refugees and
International Law of the House of Representatives, (Records of the Second Session, 16 December 1982)
(Washington: US GPO, 16 December 1982) 16 <https://​catalog.hathitrust.org/​Record/​002761207>
accessed 20 September 2016.
114  On the general position see eg Neale Ronning, Law and Politics in Inter-​American Diplomacy
(John Wiley & Sons, New York 1963) 95; John Benjamin Roberts (n 77) 244; or on the differences
within Latin America see eg Angela M Rossitto, ‘Diplomatic Asylum in the United States and Latin
America: A Comparative Analysis’ (1987) 13 Brooklyn Journal of International Law 131.
115  Arturo E Balbastro, ‘The Right of Diplomatic Asylum’ (1959) 34 Philippine Law Journal 352,
Ronning (n 114) 91.
 201

Lessons to Be Taken From the Examples 201

This isolation can be very useful for the territorial State as well: especially in case
of a lengthy sojourn, a modus vivendi that is very comfortable for the territorial
State can be developed. The asylum seeker, if he is a politician, is neither punished
and turned into a martyr, nor is he allowed to return to domestic political life. The
receiving State can tolerate such conditions for a long time and even in the absence
of a legal obligation to do so, it is often inclined to enter into bargaining and into
offering de facto safe conduct in order to obtain some reasonable benefits from the
situation.
Territorial (or receiving) States do not accept that a persecuted person could
obtain a subjective right of free emigration (safe conduct) only because of suc-
cessful entry into the diplomatic premises of a (sending) State.116 Territorial (or
receiving) States generally consider such admittance of a person into a diplomatic
building illegal, nevertheless they tolerate the situation and are refraining from
exercising reprisals and especially from the forced entry and the armed seizure of
the ‘refugees’.117 Instead, other forms of reprisals or retortions can be and some-
times are effectively exercised.118
Sending States are acting with awareness of the formal illegality or at least inad-
equate justification of the given situation from the point of view of diplomatic
law. Nevertheless, urgency and humanitarian considerations, state of necessity, or
at least moral obligations were (and can be) often invoked for the justification of
sheltering.119
State practice seems consistent in denying refuge in the embassies for common
criminals—​although sometimes it is not a self-​evident category. The diplomatic
missions usually hand over persons if they consider them common criminals.120
In case of foreign military intervention, occupation, civil war, or coups d’etat,
humanitarian considerations and urgency are expressed with acuity. In case of for-
eign military occupation, the State of the occupying forces will be in a similar
situation as the territorial (receiving) State. Because of the illegality of the foreign
military intervention and the manifest and per se unconstitutional nature of the
coup d’etat, the new powers generally also feel the importance of showing tolerance
where diplomatic shelter is concerned.121
The typical context of diplomatic asylum is bilateral. (The sending State’s mis-
sion grants shelter to a citizen of a receiving State.) Nevertheless triangular or quad-
rangular or even more complex situations are not at all uncommon, for example a
third country occupies the receiving State whose citizen is granted refuge (Kállay,
Mindszenty, Nagy, etc). Another form of the triangular version exists when the
given foreigner does not trust the territorial State and is afraid of being sent back to

116  See eg Roberts (n 37) 111 para 8.25; Duxbury (n 85) 1; Ronning (n 114) 95; John Benjamin
Roberts (n 77) 241.
117  Roberts (n 37) 111 para 8.25; Ronning (n 114) 95.
118  See eg John Benjamin Roberts (n 77) 237.
119  See Caracas Convention (n 11) art 3, and Riveles (n 100) 158.
120 See eg Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn,
Routledge, New York 1997) 126; Ronning (n 114) 90 and 96.
121  Ronning (n 114) 90.
20

202 The Non-Customary Practice of Diplomatic Asylum

the country of origin because he would like to emigrate to a third country (eg the
1988–​89 Central European cases). The quadrangular or maybe even pentangular
version is symbolized by the Assange case where an Australian citizen asked for
shelter at the Ecuadorian Mission having the fear of being extradited to the United
States or surrendered first to Sweden then extradited to the United States. The
bilateral, triangular etc version can go through some metamorphosis in the course
of time. (In the Mindszenty case, the Cardinal was fleeing from the Soviet Army,
so the USSR could be considered as the third angle, but finally, the third party dir-
ectly involved in the solution was the Holy See.)
Numerous authors consider that the spirit or the letter of certain human
rights instruments should also be taken into consideration.122 The most often
cited relevant rules are the 1951 Refugee Convention (and especially the non-​
refoulement principle)123 and that of the European Convention of Human Rights
(ECHR, concerning the responsibility of the extraditing State for death or other
harm that occurred in the requesting State, and in particular the jurisprudence
on Articles 2 and 3 ECHR) and the same can be said about the pertinent rules
of the International Covenant on Civil and Political Rights, the Inter-​American
Convention on Human Rights, etc. It depends on States whether the head of the
mission is entitled to take the decision on admission or whether this remains within
the capacity of the Ministry of Foreign Affairs of the sending State. Apparently,
most sending States are confident that the head of the mission is in such a pos-
ition as to better evaluate the local situation and of taking the decision.124 On the
other hand, the head of the mission is eligible to offer only a very short, temporary
shelter.125
Generally, sending States approve the decision taken on the spot.126 It is, how-
ever, shocking, that in situations where the actions of diplomats are evidently justi-
fied by all moral and historical perspectives, like the shelter offered to persecuted
Jews in 1944, the local diplomats were criticized or even received negative sanctions
by their sending States because they had acted ultra vires or because of their alleged
financial irresponsibility. This happened inter alia with Carl Lutz127 (see 2.3.2.4),
who was blamed for this after his return in 1945 but rehabilitated in 1958. Giorgio

122  See eg Robert Kogod Goldman and Scott M Martin, ‘International Legal Standards Relating
to the Rights of Aliens and Refugees and United States Immigration Law’ (1983) 5 Human Rights
Quarterly 309; John Benjamn Roberts (n 77) 239 f and 251 note 141; Riveles (n 100) 142; Anthea
J Jeffery, ‘Diplomatic Asylum: Its Problems And Potential as a Means of Protecting Human Rights’
(1985) 1 South African Journal on Human Rights 23; Balbastro (n 112) 133.
123  See eg Maarten den Heijer, Extraterritorial Asylum under International Law (Leiden University,
2011) <https://​openaccess.leidenuniv.nl/​bitstream/​handle/​1887/​16699/​04.pdf?sequence=12> 130 Suzanne
Riveles (n 100) 152.
124  See eg John Benjamin Roberts (n 77); for the actual application in the Saulo case see Balbastro
(n 112) 352.
125  Such consequence can be deduced from eg the telegram of Mr Wailes (n 64): ‘If they do come
back and we have bombing at noon as threatened in ultimatum, I will take them in for few minutes
as vestibule largely glass.’
126  See eg Ronning (n 114) 92.
127  Alexander Grossman, Nur das Gewissen: Carl Lutz und seine Budapester Aktion Geschichte und
Portraet (Wald, Im Waldgut 1986) 104.
 203

Lessons to Be Taken From the Examples 203

Perlasca’s activity was recognized only after 1987 and Raoul Wallenberg was cap-
tured by the Soviet Army and probably died in 1947 in the infamous Lubyanka
prison. Thus the merits of these heroes of Yad Vashem were recognized for the his-
torical records only at the end of their lives or even after their deaths.
Most of the historical and contemporary examples can be considered ex post
facto justified from moral perspectives, with only a few notable exceptions, eg
the admittance of the Hungarian Nazis during the preparations of the plot of 15
October 1944 that later really proved to be a first step towards a major interven-
tion in the domestic affairs of the territorial country. It also happens that receiv-
ing States change their attitudes:  first, they considered the situation illegal, but
later (due to a change of regime and of paradigm) it was considered as historically
justified (see, for instance, Hungary’s approach toward the Mindszenty affair dur-
ing and after Communist rule). Taking into consideration the context, the refusal
sometimes also generates political and academic criticism.
The maintenance of the current legal situation seems to be more beneficial than
the creation of a treaty based international regulation, be it either a separate treaty
or a modification to the 1961 Vienna Convention.128

128  See eg Rossitto (n 106)  135. For a rare position advancing the opposite opinion, see Peter
Porcino, ‘Toward Codification of Diplomatic Asylum’ (1976) 8 New  York University Journal of
International Law and Politics 435.
204

13
The Protection of Diplomatic Correspondence
in the Digital Age
Time to Revise the Vienna Convention?

Patricio Grané Labat and Naomi Burke*

1. Introduction

This chapter considers whether the VCDR adequately protects diplomatic docu-
ments and communications from interference in the digital age. In particular, it
examines the obligations set out in VCDR Articles 24 and 27 related to the inviol-
ability of diplomatic archives, documents, and correspondence in light of the use
of new technology not in existence at the time of the drafting of the VCDR. Such
technology includes email, electronic storage and transmission of information (for
example through online networks or cloud servers), video-​conferencing, and other
forms of electronic communications.
Diplomatic correspondence is increasingly shared by electronic means and
archived electronically. The term ‘diplomatic cable’ refers to a confidential message
in text form exchanged between a State’s diplomatic mission and its foreign min-
istry. Whereas diplomatic cables were once sent by telegram in Morse code using
submarine cables and deciphered at their destination, modern diplomatic cables
are shared electronically, often through emails or through online networks or serv-
ers. For example, it was reported that as of 2008, the US State Department uses
the same computer system for email and diplomatic cables, the difference being
that the contents of diplomatic cables are automatically archived.1 Diplomatic
cables are typically categorized according to the confidential nature of the mater-
ial contained therein, for example, top secret, secret, confidential, restricted etc.
For highly confidential information, some States use special encrypted computers

*  The views expressed by the authors in their personal capacity are their own and should not be
attributed to the firm Arnold & Porter Kaye Scholer LLP (UK) or to its past, present, or future clients,
or to the International Tribunal for the Law of the Sea. The authors would like to thank Pietro Grassi
for his research assistance.
1  Brian Palmer, ‘What’s a “Diplomatic Cable”?’ Slate Magazine (29 November 2010) <http://​www.
slate.com/​articles/​news_​and_​politics/​explainer/​2010/​11/​whats_​a_​diplomatic_​cable.html> accessed 12
May 2016.

The Protection of Diplomatic Correspondence in the Digital Age: Time to Revise the Vienna Convention?
Patricio Grané Labat and Naomi Burke. © Patricio Grané Labat and Naomi Burke, 2017. Published
2017 by Oxford University Press.
 205

Introduction 205
kept in secure rooms, accessible only to certain members of the diplomatic staff
that hold the required codes and passwords enabling access to the computers and
decryption.
The use of such technology may make unauthorized access to diplomatic cor-
respondence and archives easier and adversely affect both the inviolability of such
documents provided for under the VCDR and the legal obligations of receiving
States. For example, in November 2014 the existence of new malicious software
named ‘Regin’ was discovered.2 The bug, created for cyber-​espionage, was of a
level of sophistication that indicated it had been created by a State. Surveillance
software has also been developed by corporations and sold to governments, for
example FinSpy software, which when installed on a computer allows remote sur-
veillance of the use of the computer and its contents.3
Unauthorized access to diplomatic correspondence and archives by non-​State
actors also poses challenges not considered at the time the VCDR was drafted.
It is unsurprising that non-​State actors were not contemplated by the drafters.
At the time the VCDR was adopted in 1961, States were the primary subjects of
international law. The content of diplomatic correspondence and archives was pri-
marily of concern to States, not individuals. The scope of public international law
was at that time in the process of considerable expansion. First, new mechanisms
for inter-​State cooperation emerged, in the form of international organizations
to which States delegated partial competence to exercise their sovereign powers.
International law also developed to address the rights and responsibilities of non-​
State actors, including the expansion of international humanitarian law to include
national liberation movements and the adoption of multilateral human rights trea-
ties creating rights for individuals in 1966.4 But the VCDR does not create rights
and obligations for non-​State actors. It does not contemplate the actions of non-​
State actors and the impact that they may have on the protected information and
on the obligations of States under the treaty.
Facilitated by new technology, processes of globalization have led to the emer-
gence of information as a global public good in itself. The participation of non-​
State actors in international relations is also increasingly significant, and the use of
communication media by such entities has contributed to the development of a
global or transnational public sphere.5 Against this background, non-​State actors
whose sole purpose is to distribute information around the globe through elec-
tronic means have been created. A prime example of one such non-​State actor is

2  Rory Cellan-​Jones, ‘Regin, New Computer Spying Bug, Discovered by Symantec’ BBC News
(23 November 2014) <http://​www.bbc.co.uk/​news/​technology-​30171614> accessed 12 May 2016.
3  Nicole Perlroth, ‘Software Meant to Fight Crime is Used to Spy on Dissidents’ New York Times
(30 August 2012) <http://​www.nytimes.com/​2012/​08/​31/​technology/​finspy-​software-​is-​tracking-​
political-​dissidents.html?_​r=0> accessed 12 May 2016.
4  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171; International Covenant on Economic, Social and Cultural
Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.
5 Angela Crack, Global Communication and Transnational Public Spheres (Palgrave Macmillan,
New York 2008).
206

206 The Protection of Diplomatic Correspondence in the Digital Age

the WikiLeaks organization, whose activities in relation to diplomatic cables will

be considered in Section 3 of this chapter.
In light of the increasing ease of unauthorized access to diplomatic correspond-
ence and archives through electronic means, and the interest of non-​State actors
in such documents, this chapter considers whether the VCDR framework still
adequately protects diplomatic correspondence and archives from interference or
whether it should be amended.
In order to evaluate the effectiveness of the VCDR legal framework, this chapter
first considers, in Section 2, the obligations of States under the VCDR regarding
the inviolability of diplomatic archives and diplomatic correspondence, including
an analysis of how such protection applies to electronic information. Section 3
uses WikiLeaks as a case study, to identify the legal challenges posed by non-​State
interception of protected information under the existing legal framework of the
VCDR and public international law more generally. Using this case study, the
chapter attempts to determine whether the VCDR adequately regulates the use
of information obtained and disseminated by a non-​State actor using new tech-
nology. Section 3 analyses the legal implications under the VCDR resulting from
the use of unlawfully obtained diplomatic cables as evidence in legal proceedings
before national and international courts and tribunals and considers in particular
how courts, as State organs, should deal with such information. It also examines
what legal remedies are available to States whose diplomatic correspondence and
archives have been intercepted and disseminated through the use of new technol-
ogy, and submitted as evidence in legal proceedings.
In identifying the challenges posed to the inviolability of diplomatic corres-
pondence and archives by new technology and new actors, the chapter offers a
critical assessment of the VCDR in the digital age.

2.  The VCDR Legal Framework for the Protection

of Diplomatic Archives and Correspondence

This Section provides some historical background before recalling the provisions
of the VCDR relating to the protection of diplomatic archives and correspond-
ence. It then considers the VCDR framework in light of the challenges posed by
non-​State actors and new technology to the protection of diplomatic archives and
correspondence.

2.1 Historical background
Throughout history, States have attempted (often successfully) to intercept the
confidential communications of other States. Yet, the need to protect diplomatic
correspondence from spying or other unwelcome interference cannot be consid-
ered a driving force behind the drafting of the VCDR. There is no indication in the
drafting history of the VCDR that legal uncertainty surrounding the interception
 207

VCDR and Protection of Diplomatic Archives and Correspondence 207

of diplomatic messages was a key motivation driving the codification of the rules
on diplomatic law. The United Nations General Assembly (UNGA) simply con-
sidered codification of diplomatic law to be ‘necessary and desirable as a contribu-
tion to the improvement of relations between States’ and requested that the ILC
consider its codification as a priority topic.6
The issue of non-​State interference with archives and correspondence was not
raised as an issue when the provisions of the VCDR were negotiated. But concerns
about the risks posed by new technology, including the use of wireless transmit-
ters by diplomatic missions, were expressed during the debate. Indeed, whether a
sending State was entitled to install and use a wireless transmitter was a subject of
significant dispute at the Vienna Conference.
In 1961, only the more developed States operated wireless transmitters. Less
developed States were concerned that they were at a significant disadvantage (and
that transmitters could be used to broadcast to listeners in the receiving State).7 As
a result, Argentina, India, Indonesia, and the United Arab Republic proposed that
a wireless transmitter could only be used with the consent of the receiving State
‘after making proper arrangements for its use in accordance with the laws of the
receiving State and international regulations’.8 The United Kingdom and other
more developed States, on the other hand, objected to the requirement of consent
or the need for permission for foreign missions to operate a diplomatic wireless.
Accordingly, there was a move towards compromise, with a clause that eventually
became the final sentence of Article 27(1): ‘the mission may install and use a wire-
less transmitter only with the consent of the receiving State’. While the wording
does require the consent of the receiving State, no reference is made to subjec-
tion to local laws and procedures (which could have included a duty to submit
to inspection). Negotiations on the text of Article 27 foreshadowed the concerns
that would later arise from the use of new technology, including satellites, email,
and electronic data storage. Underlying the position of many States were concerns
regarding inequality of resources as between States and the inability of States to
regulate virtual conduct within their territories.

2.2 Protection of diplomatic archives, documents, and

correspondence
2.2.1 Diplomatic archives and documents
Article 24 of the VCDR provides that ‘[t]‌he archives and documents of the mis-
sion shall be inviolable at any time and wherever they may be’. This provision
extended the protection that already existed under customary international law for
the protection of archives and documents of a diplomatic mission.9 For example,

6  United Nations, General Assembly Resolution 685 (VII), 400th Meeting, 5 December 1952.
7  Eileen Denza, Diplomatic Law (3rd edn, OUP Oxford 2008), 215.
8  UN Doc A/​CONF 20/​L 15 and Add l, United Nations Conference on Diplomatic Intercourse
and Immunities, Annexes—​Proposals and amendments submitted to the plenary Conference, 77.
9  Denza (n 7) 192–​93.
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208 The Protection of Diplomatic Correspondence in the Digital Age

the drafting history of the VCDR indicates that the term ‘at any time’ was used
to clarify that inviolability continued in the event of the cessation of diplomatic
relations or outbreak of armed conflict.10 This term forms the basis of Rule 84 of
the Tallinn Manual on the International Law Applicable to Cyber Warfare, which
provides that ‘diplomatic archives and correspondence are protected from cyber
operations at all times’.11 Similarly, the concept of protecting diplomatic docu-
ments ‘wherever they may be’ developed customary international law by making it
clear that archives not on the premises of the mission and not in the custody of a
member of a mission were also entitled to inviolability.
The terms ‘archives and documents’ in Article 24 are not defined in the VCDR.
There was a considerable debate during the negotiation of the VCDR regarding
the use of these terms. The Secretary to the ILC suggested the inclusion of the term
‘and documents’ on the basis that ‘some documents, such as memoranda in the
process of being drafted by the counsellors of the embassy, were not necessarily, and
might never become, part of the archives’.12 The United States opposed this add-
ition as being ‘confusing and unnecessary’.13 Other representatives agreed, believ-
ing this addition to be redundant as ‘archives’ included documents. On that basis,
there was a proposal for the phrase ‘archives and correspondence’ to be used.14
However, the addition of ‘correspondence’ was met with resistance. For example,
the Special Rapporteur noted that it ‘would be difficult to define the meaning of
correspondence’, and that ‘the word “documents” included official letters, so that
nothing would be gained by the suggested addition’.15 Despite opposition from
the United States, the suggestion of the Secretary to the ILC to include ‘and docu-
ments’ was ultimately accepted, as evinced by the final wording of Article 24.
Other treaties have included comprehensive definitions of the term ‘archive’,
which may offer guidance for the interpretation of that same term in the VCDR.
The VCCR provides that ‘consular archives’ include:
all the papers, documents, correspondence, books, films, tapes and registers of the consu-
lar post, together with the ciphers and codes, the card indexes and any article of furniture
intended for their protection or safekeeping.16
This more extensive definition has been applied by analogy to the VCDR by the
UK House of Lords in the Shearson Lehman Brothers case, where ‘archives’ was
interpreted to include all papers and documents held by an organization and not
just those documents that the organization intended to retain as a formal record.17

10  UN Doc A/​CONF.20/​C1/​L 149 (amendment of France and Italy).

11  Michael N Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP,
Cambridge 2013) 233. The Tallinn Manual was written by an independent ‘International Group of
Experts’ and consists of a set of non-​binding guidelines on the rules applicable in cyber warfare.
12  See contribution by Mr Liang, ILC Yearbook 1958 vol I, 135.
13  See contribution by Mr Sandström, ILC Yearbook 1958 vol I, 135.
14  See contribution by Mr Alfaro, ILC Yearbook 1958 vol I, 135.
15  See contribution by Mr Sandström, ILC Yearbook 1958 vol I, 136.
16  VCCR art 1(k).
17  Shearson Lehman Brothers Inc v Maclaine Watson & Co Ltd (No 2) [1988] 1 All ER 122.
 209

VCDR and Protection of Diplomatic Archives and Correspondence 209

Given that ‘archives’ is not a defined term in the VCDR, a reasonable interpret-
ation of that term in accordance with the rules of interpretation under customary
international law (which take into account the object and purpose of a treaty)
is that the protection set out in Article 24 also applies to electronic archives. As
Denza notes, the term ‘archives’ in the VCDR is ‘normally understood to cover
any form of storage of information or records in words or pictures and to include
modern forms of storage such as tapes, sound recordings and films, or computer
disks’18 and today includes ‘data held by electronic means, such as those stored on
computer hard and floppy disks, CD-​ROMs, memory sticks and whatever other
new information storage methods are invented’.19 Denza looks to the purpose
of Article 24 (namely, to protect confidential information) and concludes that
‘it is clearly right that the words “archives and documents” should be regarded
as covering modern methods of storage such as computer disks’.20 This view was
affirmed by the High Court of England and Wales in 2013.21 Accordingly, diplo-
matic cables sent and stored electronically could be considered to constitute both
documents and archives, entitled to inviolability under Article 24.
On this basis, it can be concluded that the move away from paper archives
and documents towards electronic data storage does not, at least in theory, affect
the protection granted to diplomatic archives under the VCDR. Accordingly, no
amendment to the Convention seems necessary in order for electronic archives to
fall within the scope of the VCDR. Electronic archives, like paper archives, are
‘inviolable at any time and wherever they may be’. In practice, however, the fact
that archives are stored electronically may make them more vulnerable and suscep-
tible to interference, either by States or by non-​State actors.
Article 24 of the VCDR does not specify what exactly the obligations of States
are regarding the inviolability of diplomatic archives. While a State clearly may
not interfere with diplomatic archives of another State, it is unclear what degree of
action is required from States to prevent interference with diplomatic archives by
persons or entities that are not organs of the State.
In contrast, Article 22 of the VCDR, which provides that the premises of a dip-
lomatic mission shall be inviolable, also specifies that the receiving State ‘is under
a special duty to take all appropriate steps to protect the premises of the mission
against any intrusion or damage’.22 It is reasonable to interpret that duty on the
part of States to include protecting the premises of the mission against intrusion
or damage from non-​State actors. Similarly, it is fairly clear that the obligation of a
receiving State under Article 29 to ‘take all appropriate steps to prevent any attack’

18  Eileen Denza, ‘Privileges and Immunities of Diplomatic Missions’ in Ivor Roberts (ed), Satow’s
Diplomatic Practice (6th edn, OUP, Oxford 2009) 113.
19  Anthony Aust, Handbook of International Law (3rd edn, OUP, Oxford 2010) 120.
20  Denza (n 7) 195.
21  R Bancoult (on the application of ) v Secretary of State for Foreign and Commonwealth Affairs,
[2013] EWHC 1502 (Admin), para. 41. See text to n 68, below.
22  VCDR art 22(2).
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210 The Protection of Diplomatic Correspondence in the Digital Age

on the ‘person, freedom or dignity’ of a diplomatic agent extends to providing pro-

tection from attacks from non-​State actors.23
The scope of Article 24 is less clear. The commentary to the draft articles pre-
pared by the ILC in 1957 states ‘[A]‌s in the case of the premises of the mission,
the receiving State is obliged to respect the inviolability itself and to prevent its
infringement by other parties.’24 However, the language of Article 22 (of ‘a special
duty to take all appropriate steps’) was not repeated in Article 24.
While this lack of certainty may not have been significant at the time the VCDR
was drafted, the increased interest of non-​State actors in sensitive diplomatic infor-
mation means that the scope of Article 24, or at least its lack of clarity, may have
important adverse consequences for the protection of diplomatic documents and
archives. This potential gap in the VCDR legal framework will be analysed further
in Section 3, regarding the use of confidential diplomatic cables leaked by non-​
State actors.

2.2.2 Official correspondence of the diplomatic mission

Article 27(2) provides that ‘[t]‌he official correspondence of the mission shall be
inviolable’ and defines the term ‘official correspondence’ as ‘all correspondence
relating to the mission and its functions’. It is not clear from the wording of the
second sentence of Article 27(2) whether only correspondence emanating from the
mission is to be considered inviolable, or whether correspondence to the mission
from the sending State is also inviolable.25
Denza considers that there are two aspects to Article 27(2).26 First, it is unlawful
for official correspondence of the mission to be opened by the authorities of the
receiving State. This obligation of the receiving State may overlap with the obliga-
tion under Article 24, which protects mission documents ‘wherever they may be’.
Second, it may preclude official correspondence from being used as evidence in the
courts of the receiving State.
Difficulties may arise in enforcing the inviolability of the official correspond-
ence pursuant to Article 27(2). Because there is no obligation for mission corres-
pondence to bear visible marks of identification, it is not possible for authorities
to know whether correspondence relates to the mission and its functions with-
out opening it and reading it. In practice, a receiving State is likely to intercept
and read correspondence by means that can be very difficult to detect. To avoid
interception, missions will send information by coded telegram (as a diplomatic
cable) or by sealed diplomatic bag. States with better resources and access to more

23  VCDR art 29.

24  Report of the International Law Commission on the work of its ninth session, 23 April–​28 June
1957, UN Doc A/​3623, p 135.
25  Denza (n 7) 226.
26  ibid. This element of the protection of art 27(2) has been called into question by the recent
UK Court of Appeal decision in the case of Regina (Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs (No 3) 2014 WLR 237 discussed in section 3 below.
 21

VCDR and Protection of Diplomatic Archives and Correspondence 211

advanced technology and know-​how may find it easier to determine when official
correspondence sent by electronic correspondence has been intercepted.
As with the definition of ‘archives’ under Article 24, ‘correspondence’ can, in
accordance with customary international law rules on treaty interpretation, be
interpreted to include electronic correspondence. There is therefore no need for
an amendment to the VCDR in order for email or other electronic transmission
of correspondence to fall within the scope of protection of Article 27(2). Article
27(1) of the VCDR provides that ‘[I]‌n communicating with the Government and
the other missions and consulates of the sending State, wherever situated, the mis-
sion may employ all appropriate means.’ The reference to ‘all appropriate means’
supports the conclusion that the protections under Article 27, including protec-
tion of (a)  ‘free communication’ of the diplomatic mission and (b)  its ‘official
correspondence’, necessarily extend to electronic forms of communications and
documents. Treaties concluded after the VCDR explicitly refer to electronic cor-
respondence. For example, Article 11(3) of the Agreement on the Privileges and
Immunities of the International Criminal Court provides that the ‘Court may use
all appropriate means of communication, including electronic means of commu-
nication’.27 Accordingly, diplomatic cables sent electronically between embassies
and missions abroad and the sending State can be considered to constitute ‘corres-
pondence’ within the meaning of Article 27(2) (as well as ‘documents’ within the
meaning of Article 24).
Article 27(1) requires States to ‘permit and protect free communication on the
part of the mission for all official purposes’. The obligation to ‘protect free commu-
nication’ may be understood as creating obligations additional to those concerning
the inviolability of official correspondence. Arguably, States are required not only
not to interfere with the official correspondence of diplomatic missions but also
to protect that correspondence from interference by persons and entities that are
not State officials or organs. In the context of human rights treaties, the obligation
‘to protect’ requires States to protect individuals and groups against human rights
abuses, both by the State and by third parties. In this context, the ‘duty to protect’
provides:
generally, that states have a positive obligation in certain circumstances to prevent private
actors from infringing on the rights of other individuals. In essence it requires states to pre-
vent, punish, investigate and redress human rights violations.28
For example, in the Velasquez Rodriguez case, the Inter-​American Court of Human
Rights held that States had an obligation of ‘due diligence’ to prevent human rights
violations.29 A similar argument can also be made in respect of the interpretation

27  Agreement on the Privileges and Immunities of the International Criminal Court 2002, 2271
UNTS 3 (adopted 9 September 2002).
28  Sheri P Rosenberg SP, ‘Responsibility to Protect: A Framework for Prevention’ (2009) 1 Global
Responsibility to Protect 442, 447.
29  Velasquez Rodriguez Case (Judgment), Inter-​American Court of Human Rights Series C No 4
(29 July 1989).
21

212 The Protection of Diplomatic Correspondence in the Digital Age

of the obligation to protect free correspondence, namely that States are obliged to
prevent interference with diplomatic correspondence by third parties.30
In practice however, Denza notes that the provisions of Article 27(1) and (2) are
‘widely disregarded by those States which have the technical capacity to intercept
embassy communications’.31 The willingness of States to intercept correspondence
despite the clear language of Article 27 suggests that any clarification or revision of
the text of the VCDR might not have any impact on States’ compliance with their
obligations in respect of State conduct.

2.2.3 The diplomatic bag
For reasons of efficiency, diplomatic missions now send the majority of corres-
pondence and documents using electronic means. The diplomatic bag is primarily
used to send hard copies and items that cannot be sent electronically such as goods
or currency.
Article 27 of the VCDR provides that the diplomatic bag shall not be opened
or detained (paragraph 3) and that ‘[t]‌he packages constituting the diplomatic bag
must bear visible external marks of their character and may contain only diplo-
matic documents or articles intended for official use’ (paragraph 4).
Article 27(3) and (4) of the VCDR was drafted to balance the need for confi-
dentiality of diplomatic correspondence with the need to safeguard against pos-
sible abuse.32 This was controversial during the negotiating process. Certain States
(eg the Soviet Union) favoured unconditional inviolability, whereas others sup-
ported the existing customary law rule which permitted the ‘challenge and return’
of a diplomatic bag. The final wording of Article 27(3) prohibits the opening of a
diplomatic bag under any circumstances. A number of Arab States entered reserva-
tions on this point when ratifying the VCDR, to allow them to open diplomatic
bags in certain circumstances.33
New technology presented challenges to the inviolability of the diplomatic bag.
There is no indication that the representatives that took part in the negotiation of
the VCDR considered the possibility of scanning or testing diplomatic bags (eg
for nuclear material, drugs, explosives, weapons, etc) without opening or detaining
the bags. Article 27 does not expressly prohibit the scanning of the diplomatic bag
on its arrival in the receiving State (for example, to confirm that bag contains only
‘diplomatic documents or articles intended for official use’, as required by Article
27). In practice, the ability of States to scan diplomatic bags has been the subject
of great contention.

30 Won-​Mog Choi, ‘Diplomatic and Consular Law in the Internet Age’ (2006) 10 Singapore
Yearbook of International Law 117, 124.
31  Denza (n 7) 11.
32  Christine M Nelson, ‘Opening Pandora’s Box: The Status of the Diplomatic Bag in International
Relations’ (1988) 12 Fordham Int’l LJ 494, 503.
33  Including Kuwait, Libya, Saudi Arabia, and the Yemen Arab Republic.
 213

VCDR and Protection of Diplomatic Archives and Correspondence 213

The general practice was that diplomatic bags were not subject to scanning.
The diplomatic bag became ‘the ideal container for the international transport of
contraband and weaponry’.34 To deal with these abuses of the diplomatic bag, in
the mid-​1980s certain States sought recognition of a right to ‘verification of the
bag’35 including through scanning (eg see the positions of Austria and Italy).36
There were a number of proposals in support of non-​intrusive examinations.37
But this practice was not without controversy. In 1988, New Zealand stated that
‘electronic screening could, in certain circumstances, result in a violation of the
confidentiality of the documents contained in a diplomatic bag’.38 This was a fear
of certain less developed countries, as noted by the representative from Zaire who
in 1985 noted that many developing countries could not afford devices to use by
way of reciprocity.39 Similarly, the representatives of Spain and Argentina feared
that sophisticated scanning technologies could be used to read documents in dip-
lomatic bags.40
The discussion on the scanning of diplomatic bags was one among a number
of controversial issues that gained the attention of the ILC. Indeed, the 1987
International Conference on Drug Abuse and Illicit Trafficking had specifically
drawn the ILC’s attention to the possible misuse of the diplomatic bag for the pur-
pose of drug trafficking.41 In that vein, expressing its concern over the violation of
rules of diplomatic law, the UNGA requested the ILC to draft a protocol concern-
ing the status of the diplomatic courier and the diplomatic bag, ‘which would con-
stitute development and concretization’ of the VCDR.42 It also invited its Member
States to submit to the Secretary-​General their observations on ways to implement
the provisions of both the VCDR and the VCCR in 1976.43
The Draft Articles on the Status of the Diplomatic Courier and the Diplomatic
Bag Not Accompanied by Diplomatic Courier and Draft Optional Protocols (‘Draft
Articles on Diplomatic Bag’) were adopted by the ILC at its forty-​first session,
in 1989, and submitted to the General Assembly. In accordance with Article 23
of its Statute, the Commission decided to recommend to the UNGA that it con-
vene an international conference of plenipotentiaries to study the draft articles and
the optional protocols and to conclude a convention on the subject.44 In 1995,
the UNGA brought the Draft Articles to the attention of its Member States as a
reminder of a field of international law that may be subject to codification at an
appropriate time in the future.45
In fact, the Draft Articles on Diplomatic Bag provide valuable guidance for a
future codification, as they take into consideration recent technological develop-
ments. For instance, Article 28 provides that the diplomatic bag ‘shall be exempt

34  Nelson (n 32) 507. 35  ILC Yearbook 1985 vol II Pt 1, 57–​58.

36  Denza (n 7) 240. 37  Nelson (n 32) 496. 38  Denza (n 7) 239–​40.
39  Nelson (n 32) 494. 40 ibid. 41  ILC Yearbook 1988 vol II Pt 2, 91, para 437.
42  UNGA Res 31/​76 (13 December 1976) UN Doc A/​RES/​31/​76.
43  UNGA Res 3501 (XXX) (15 December 1975); UNGA Res 31/​76 (13 December 1976) UN
Doc A/​RES/​31/​76.
44  ILC Yearbook 1989 vol II Pt 2, 13, para 66.
45  UNGA Res 50/​416 (11 December 1995) UN Doc A/​50/​216.
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214 The Protection of Diplomatic Correspondence in the Digital Age

from examination directly or through electronic or other technical devices’. In its

commentaries the ILC explained that ‘… the inclusion of this phrase [through
electronic or other technical devices] was necessary as the evolution of technology
had created very sophisticated means of examination which might result in the
violation of the confidentiality of the bag, means which furthermore were at the
disposal of only the most developed states’.46
There have been a number of disputes in practice concerning Article 27(3) and
(4). For example, there has been some dispute about what actually constitutes a
‘diplomatic bag’, what constitutes the requisite ‘external marks’ which would qual-
ify it as a diplomatic bag, what limits should be placed on the term ‘articles for
official use’, and the extreme circumstances in which a diplomatic bag has been
opened.47 Most recently, in November 2013, the UK accused Spain of a ‘serious
infringement’ of international law by opening a diplomatic bag as it crossed the
border from Gibraltar. Spain argued it did not constitute a ‘diplomatic bag’ for
the purposes of Article 27 of the VCDR, as it had originated with the office of
the Governor-​General, who was not a member of a diplomatic mission.48 The UK
responded that it was clearly marked as the property of Her Majesty’s Government
and that the Governor’s Office in Gibraltar had sent diplomatic bags for more than
two decades.49 It is unclear whether the basis for the UK argument was that corres-
pondence of the Governor General constituted diplomatic correspondence within
the meaning of the VCDR, or that the bag was entitled to immunity as a result
of an agreed practice between the two States. This incident illustrates that despite
the strong wording of Article 27 protecting the inviolability of the diplomatic bag,
diplomatic disputes over such incidents continue to occur. Still more disputes may
arise as a result of the greater reliance by States on the use of new technology to
transmit official documents.
The question has been raised as to whether the protections of Article 27(3)
could be extended to cover electronic transmissions, through the creation of a ‘vir-
tual diplomatic bag’.50 However, the concept of a virtual diplomatic bag may be
unwarranted. An attempt to expand the concept of diplomatic bag to cover elec-
tronic documents may be both unnecessary and incompatible with the essence of
the concept. Electronic transmission is now the most efficient way of communica-
tion and is already protected under Article 27(2). Expanding the definition of the

46  Paragraph (6) of the commentaries of the ILC to Article 28 of the Draft Articles on the Status
of the Diplomatic Courier and the Diplomatic Bag Not Accompanied by Diplomatic Courier, ILC
Yearbook 1989 vol II Pt 2, 43.
47  See Denza (n 7) 231–​43.
48 The Governor of Gibraltar is the representative of the British monarch in Gibraltar. Fiona
Govan, ‘Spain Dismisses Gibraltar Diplomatic Bag Incident’ The Telegraph, (London, 27 November
2013) <http://​www.telegraph.co.uk/​news/​worldnews/​europe/​gibraltar/​10477856/​Spain-​dismisses-​
Gibraltar-​diplomatic-​bag-​incident.html> accessed 12 May 2016.
49  Peter Dominiczak and Fiona Govan, ‘David Cameron: Gibraltar Diplomatic Bag Incident Was
an “Extremely Serious Action” ’ The Telegraph (London, 27 November 2013) <http://​www.telegraph.
co.uk/​news/​worldnews/​europe/​gibraltar/​10478182/​David-​Cameron-​Gibraltar-​diplomatic-​bag-​
incident-​was-​an-​extremely-​serious-​action.html> accessed 12 May 2016.
50  Choi (n 30) 131.
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VCDR and Protection of Diplomatic Archives and Correspondence 215

diplomatic bag to obtain the protections of Article 27(3) for electronic documents
may be missing the point.
The concept of diplomatic bag still has its place but it cannot encompass elec-
tronic documents because its ordinary meaning implies physicality. Any attempt
to redefine that concept to include a form of ‘virtual diplomatic bag’ is neither
reasonable nor necessary, given the fact that electronic transmissions would fall
more easily within the term ‘archives and documents’ and ‘official correspondence’
and thus receive the protection under Articles 24 and 27(2). In order for electronic
communications or data to be protected by Article 27(3), presumably they would
have to be placed in a virtual diplomatic bag, visibly marked as such.
Unlike Articles 24 and 27(1) and (2), which can be interpreted to encompass
electronic archives and documents and official correspondence, it is more difficult
to interpret the ordinary meaning of Article 27(4) (which refers to ‘the packages
constituting the diplomatic bag’) as including a virtual diplomatic bag, under cus-
tomary international law rules of treaty interpretation. If States wish to expand the
concept of the ‘diplomatic bag’ to comprise a virtual or electronic diplomatic bag
(eg cloud servers or online storage and transmission sites), it may be advisable for
those States to negotiate and agree on the mechanism whereby a virtual diplomatic
bag could be marked as such and receive the protections under Article 27(3), such
as an additional protocol to the VCDR. However, engaging in treaty making to
expand the definition of ‘diplomatic bag’ may be unnecessary, considering that
electronic communications are already entitled to protection under Article 27(2)
as are electronic documents under Article 24.

2.3 Conclusions about the adequacy of the VCDR in the

digital age
For the reasons stated above, it appears that no amendment to the VCDR is
required in order to extend the protections of Article 24 (archives and documents)
and Article 27 (official correspondence) to diplomatic documentation transmitted
or stored electronically. Article 24 can be interpreted to include archives and docu-
ments in electronic form. Similarly, the protection of diplomatic correspondence
set out in Article 27(1) and (2) can be interpreted to include correspondence in
electronic form and transmitted electronically. The scope of protection of diplo-
matic archives, documents, and official correspondence set out in the VCDR is,
on its face, adequate, even in the digital age, and does not call for amendment of
the Convention.
However, the fact that technology has made it easier for non-​State actors to inter-
cept information, coupled with the increasing participation of non-​State actors in
international relations, means that the protection of diplomatic archives, docu-
ments, and official correspondence set out in the VCDR may need to be strength-
ened. In relation to archives and documents in particular, it is unclear what the
obligations of States are regarding the protection of archives from unauthorized
third party access. The ILC commentary to Article 24 indicates that the obligation
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216 The Protection of Diplomatic Correspondence in the Digital Age

of inviolability extends to preventing infringement by third parties. However, spe-

cific language to this effect was not included in the text of the VCDR. As for
Article 27(1), the obligation to protect free communication can be interpreted as
including the obligation to protect correspondence from interference with third
parties, but the text does not provide clear guidance in this regard.
The obligations of States regarding the inviolability of diplomatic documents,
archives, and correspondence and the protection of communication should be
clarified and possibly enhanced, to require affirmative action by the receiving State
to prevent interference by non-​State actors with protected diplomatic information
within the receiving State’s jurisdiction. States could be required to take all appro-
priate measures (including the enactment of laws and regulations) to prevent and
prosecute interception, interference with, or disclosure of, protected diplomatic
documentation. For example, under the law of the United States, whoever pub-
lishes or furnishes to another official diplomatic codes or correspondence shall be
fined or imprisoned for no more than ten years, or both.51 The creation of an obli-
gation to criminalize interference with diplomatic correspondence could enhance
the applicability of VCDR provisions guaranteeing freedom of communication
and the inviolability of diplomatic documents in practice.
However, should such provisions extend beyond criminalization of the act of
interference (and include criminalization of dissemination of material unlawfully
obtained by others) this may have consequences for the obligations of States under
international human rights law. In general States are entitled to restrict the right
to freedom of expression, but they must show that the particular restrictions are
necessary, legitimate, and proportionate to the specific threat they claim justifies
the restriction.52 The UN Special Rapporteur on the Promotion and Protection
of the Right to Freedom of Opinion and Expression, in response to the disclosure
of confidential information by WikiLeaks (including classified diplomatic corres-
pondence) stated:
Public authorities and their staff bear sole responsibility for protecting the confidential-
ity of legitimately classified information under their control. Other individuals, including
journalists, media workers and civil society representatives, who receive and disseminate
classified information because they believe it is in the public interest, should not be subject
to liability unless they committed fraud or another crime to obtain the information.53

51  18 USC 952 (June 25, 1948, ch 645, 62 Stat 743; Pub L 103–​322, title XXXIII, §330016(1)(L),
13 September 1994, 108 Stat 2147).
52  See eg Article 19 of the International Covenant on Civil and Political Rights which provides
that the right of freedom of expression may therefore be subject to certain restrictions, ‘but these shall
only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of
others; (b) For the protection of national security or of public order (ordre public), or of public health
or morals.’ International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976), 999 UNTS 171.
53  Joint Statement on WikiLeaks, UN Special Rapporteur on the Promotion and Protection the
Right to Freedom of Opinion and Expression and the Special Rapporteur for Freedom of Expression
of the Inter-​American Commission on Human Rights, 10 December 2010.
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Use of Leaked Diplomatic Cables as Evidence in Legal Proceedings 217

The specific obligations of States in respect of the protection of diplomatic docu-
ments from interference by third parties would thus have to be carefully drafted
in order to take into account the international human rights obligation of States.
The VCDR does not contain any provisions concerning its amendment or revi-
sion. The general rule on amendment and revision of treaties set out in Article
39 of the VCLT is that a treaty may be amended by agreement between the par-
ties. Typical procedures for the amendment of a treaty include the convening of
a revision conference (which can be expensive and time consuming) or the use of
a simplified procedure of amendment by correspondence conducted by the trea-
ties depositary.54 Accordingly, the UN Secretary-​General (the depositary of the
VCDR) could, on the request of the parties, circulate a proposed amendment
clarifying that the obligations of Articles 24 and 27 include an obligation to pro-
tect diplomatic documents, archives, and correspondence from interference by
third parties.
The obligations of State parties to the VCDR could also be clarified by less for-
mal means. The parties could adopt a declaration setting out an authoritative inter-
pretation of the relevant articles. Alternatively, an international court or tribunal
seized of a dispute regarding the interpretation of Articles 24 or 27 could clarify
what the precise obligations of States are under the VCDR.

3.  The Use of Leaked Diplomatic Cables as Evidence

in Legal Proceedings

To examine the challenges and practical consequences posed by the interception

and dissemination of protected diplomatic communications by non-​State actors,
this section takes the use of diplomatic cables leaked by WikiLeaks as a case study.

3.1 Case study:  WikiLeaks

WikiLeaks was launched in 2007 as a site where whistleblowers could anonym-
ously share information of public concern. According to its website, WikiLeaks is
a not-​for-​profit media organization whose stated goal is to ‘bring important news
and information to the public’ by providing an ‘innovative, secure and anonymous
way for sources to leak information to our journalists’.55 On 28 November 2010,
WikiLeaks began publishing classified US diplomatic cables that had been sent
to the US State Department from its embassies and consulates abroad between
December 1966 and February 2010. The diplomatic cables, along with other clas-
sified documents, were provided to WikiLeaks by Private Chelsea Manning (for-
merly known as Bradley Manning) who was at that time an intelligence analyst in

54 Jan Klabbers, ‘Treaties, Amendment and Revision’ in Rüdiger Wolfrum (ed), Max Planck
Encyclopedia of Public International Law (OUP, Oxford 2014).
55  ‘About’ (WikiLeaks) <https://​wikileaks.org/​About.html> accessed 12 May 2016.
218

218 The Protection of Diplomatic Correspondence in the Digital Age

the US Army.56 The cables were accessed from an international computer network
of the US Department of Defence known as the Secure Internet Protocol Router
Network (‘SIPRNet’) used to transmit confidential information in a secure envir-
onment. On 1 September 2011 WikiLeaks decided to publish all of the 251,287
unedited diplomatic cables that had been leaked by Private Manning.
If the disclosure of the diplomatic cables to WikiLeaks and the public had been
carried out by a foreign State it would have constituted a breach of that State’s
obligations under the VCDR. However, the conduct of Private Manning (a US
national employed by the United States and not known to be acting under the dir-
ection and control of another State) cannot be attributed to a foreign State. A US
court-​martial found such conduct to constitute a violation of the US Espionage Act
among other laws, and Private Manning was prosecuted. Even if the United States
was considered to have a duty to prevent unauthorized interference with diplo-
matic archives by others, the obligations of Article 24 would not apply since there
was no host State/receiving State relationship. The actions of Private Manning do
not constitute a violation of the United States’ obligations under the VCDR, since
such obligations concern the treatment afforded to foreign diplomatic missions
within the territory of the contracting State.
Whether the actions of WikiLeaks could be attributed to a foreign State warrants
consideration. While some media reports stated that the WikiLeaks headquarters
was in Pionen, Sweden, housed in a Cold War bunker thirty metres underground,57
later reports clarified that this was not the organization’s ‘headquarters’, but rather
a site that housed the Bahnhof computer centre, which hosts two WikiLeaks serv-
ers.58 It is reported that WikiLeaks located the servers in Sweden as Sweden ‘offers
legal protection to the disclosures made on the site’.59 WikiLeaks is a project of
the ‘Sunshine Press Productions’. Sunshine Press Productions was incorporated
in Iceland as a private limited company on 26 January 2011. According to the
WikiLeaks website, despite ‘rumours’ of some government or intelligence agency
affiliation, the organization ‘is not a front’ for any such entity.60 Assuming that to
be correct, there are no known State affiliations.
On the basis of the facts available it appears that WikiLeaks is not an official
State organ, does not exercise governmental authority, is not under the direc-
tion or control of any State, nor has its conduct been adopted by any State as
its own. As such the conduct of the organization is unlikely to be attributable to

56  In August 2013, Chelsea Manning was sentenced to thirty-​five years in prison for numerous
violations of the Espionage Act (18 US Code Chapter 37). Julie Tate, ‘Bradley Manning Sentenced
to 35 Years in WikiLeaks Case’ The Washington Post (Washington, 21 August 2013) <https://​www.
washingtonpost.com/​world/​national-​security/​judge-​to-​sentence-​bradley-​manning-​today/​2013/​08/​
20/​85bee184-​09d0-​11e3-​b87c-​476db8ac34cd_​story.html> accessed 12 May 2016.
57  Glenda Kwek, ‘WikiLeaks goes underground . . . in a bunker deep in Sweden’ Sydney Morning
Herald (Sydney, 6 December 2010) <http://​www.smh.com.au/​technology/​technology-​news/​wikileaks-​
goes-​underground-​-​in-​a-​bunker-​deep-​in-​sweden-​20101206-​18mii.html> accessed 12 May 2016.
58  Kelly Minner, ‘Architecture of WikiLeaks’ (Arch Daily, December 2012) <http://​www.archdaily.
com/​95432/​architecture-​of-​wikileaks/​> accessed 12 May 2016.
59  Jean-​Pierre Hombach, The Secret about Acta (Lulu 2012) 135.
60  ‘About’ (WikiLeaks) <https://​wikileaks.org/​About.html> accessed 12 May 2016.
 219

Use of Leaked Diplomatic Cables as Evidence in Legal Proceedings 219

Sweden or any other State in accordance with the rules on attribution of conduct
under customary international law, set out in Articles 4–​10 of the ILC Articles
on the Responsibility of States for Internationally Wrongful Acts (ARSIWA).61
Accordingly, the acts of WikiLeaks are unlikely to constitute the acts of a State or
to give rise to the direct international responsibility of any State for a breach of its
VCDR obligations.
A question that remains is whether any State bears some share of responsibility
under the VCDR for the leaks of the protected diplomatic documentation, even
though the conduct of WikiLeaks cannot be attributed to the State. As set out
in Section 2.2.1 above, it is unclear what obligations States have regarding the
protection of diplomatic archives, documents, and official correspondence from
unauthorized access by third parties (ie non-​State actors or agents). The ILC com-
mentary to VCDR Article 24 (archives and documents of the mission) indicates
that the obligation of inviolability of archives and documents includes the obli-
gation ‘to respect the inviolability itself and to prevent its infringement by other
parties’.62
Even if it was clarified that obligations under the VCDR included the specific
obligation to prevent and punish unauthorized interference with diplomatic cor-
respondence by third parties (as suggested in section 2.3 above), it is not clear that
the responsibility of Sweden would be engaged concerning the acts of Wikileaks.
As noted in section 2.3 above, international human rights law limits the extent to
which States can limit the right to freedom of expression.

3.2 Use of leaked diplomatic documentation and obligations

of States under the VCDR
Diplomatic cables published by WikiLeaks have been submitted as evidence in
several cases before international and national courts, both by States and non-​State
parties. The use of protected diplomatic documentation that has been impermis-
sibly disclosed or disseminated in that manner may have legal implications under
the VCDR.

3.2.1 National courts
Before national courts, the admission of a leaked cable as evidence may involve a
violation of a State’s obligations under the VCDR, whether the cable is submitted
by the State itself or by a non-​State party. This is because national courts, as organs
of a State, have an obligation to enforce the inviolability of documents entitled to
protection under the VCDR.

61 International Law Commission, Articles on the Responsibility of States for Internationally

Wrongful Acts, Report on the work of its fifty-​third session, ILC Yearbook 2001 vol II Pt 2, 40–​52.
62  Report of the International Law Commission on the work of its ninth session, 23 April–​28 June
1957, UN Doc A/​3623,137.
20

220 The Protection of Diplomatic Correspondence in the Digital Age

This issue has been given close consideration by the UK courts, particularly in the
course of the Bancoult litigation,63 relating to the creation of British Indian Ocean
Territory (BIOT), the eviction of the inhabitants of BIOT, and their resettlement
in Mauritius.64 The former inhabitants of BIOT have challenged their eviction via
numerous legal routes. The most recent Bancoult litigation concerns a challenge to
the decision of the UK government to establish a Marine Protected Area (MPA)
around BIOT. The MPA makes commercial fishing illegal, which will make it
more difficult for the former inhabitants of BIOT to support themselves if they are
eventually permitted to return to the territory, as is their hope.
In the Bancoult (No 3) case,65 the plaintiff sought to rely on the contents of a
classified diplomatic cable sent from the US Embassy in London to the US State
Department in Washington in May 2009, both as an aid during cross-​examination
of witnesses and as evidence in its own right. The cable was published by The
Guardian and other newspapers pursuant to an agreement with WikiLeaks. The
diplomatic cable purported to record observations made by British officials about
the proposal to create the MPA and indicated that prevention of the resettlement
of BIOT was a goal shared by the United States and the UK.66 The cable further
suggested that the motive behind the creation of the MPA was not the protection
of the environment or, at a minimum, was not only the protection of the environ-
ment, but also included the prevention of resettlement of the islands.
In June 2013, the High Court of Justice of England and Wales (the ‘High
Court’) held that the information contained in the leaked diplomatic cable at
issue could not be submitted as evidence in judicial proceedings before the English
courts as such reliance would constitute a breach of VCDR Articles 24 and 27(2).67
Specifically, the High Court indicated that the cable could not be relied upon as
evidence as it enjoyed immunity under the VCDR, incorporated into English law
by the Diplomatic Privileges Act of 1964, which provides that the archives of dip-
lomatic missions remain inviolable at all times. The plaintiff had argued that the
original ‘document’ was electronic and that once it had been transmitted by the
embassy, it ceased to be ‘official correspondence of the mission’ within the meaning
of Article 24. The High Court rejected this argument reasoning that:

63  R (Bancoult) v Foreign & Commonwealth Office (No 3) [2013] EWHC 1502 (Admin); Regina
(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2014] EWCA Civ 708.
64  On 8 November 1965, a new colony of BIOT was formed from islands previously forming part
of the UK colonies of Mauritius and the Seychelles. The basis for this was the British Indian Ocean
Territories Order, a statutory instrument made under the Colonial Boundaries Act 1895. BIOT now
consists of six main island groups comprising the Chagos Archipelago of 55 islands with a total land
area of 60 km². In 1971, the BIOT Commissioner promulgated BIOT Ordinance No 1, which
provided that no person was entitled to be present or remain in the territory, unless in possession of a
permit. BIOT, Ordinance No 1 of 1971, Article 4.
65  R (Bancoult) v Foreign & Commonwealth Office (No 3) [2013] EWHC 1502 (Admin).
66  ‘US Embassy Cables: Foreign Office Does Not Regret Evicting Chagos Islanders’ The Guardian
(London, 2 December 2010) <http://​www.guardian.co.uk/​world/​us-​embassy-​cables-​documents/​
207149> accessed 12 May 2016.
67  R (Bancoult) v Foreign & Commonwealth Office (No 3) [2013] EWHC 1502 (Admin).
 21

Use of Leaked Diplomatic Cables as Evidence in Legal Proceedings 221

The context, object and purpose of the 1961 Convention require the words ‘document’ and
‘correspondence’ to include modern forms of electronic communication with the possible
exception of communication by voice only. Likewise, an electronic storage system of such
information is an ‘archive’.68
The High Court cited the decision of the House of Lords in Shearson Lehman
Bros Inc v Maclaine Watson & Co Ltd with approval.69 In that case, the International
Tin Council (an organization whose archives enjoyed the same inviolability as
those of a diplomatic mission under UK law) sought to prevent the use in litiga-
tion of documents it claimed were part of its official archives. The House of Lords
concluded that a document which was stolen or otherwise improperly obtained
from a diplomatic mission could not be used in court proceedings.70 The House
of Lords rejected the argument that Article 24 was restricted to protecting against
executive or judicial action by the host State.71 Instead, Lord Bridge set out what
has become a landmark decision on this point, noting that:
The underlying purpose of the inviolability is to protect the privacy of diplomatic commu-
nications. If that privacy is violated by a citizen, it would be wholly inimical to the underly-
ing purpose that the judicial authorities of the host State should countenance the violation
by permitting the violator, or anyone who receives the document from the violator, to make
use of the document in judicial proceedings.72
In 2013, the High Court in Bancoult (No 3) found that quotation of Lord Bridge
set out above provided a complete answer to the use of the leaked diplomatic cable
in question. The High Court agreed with the finding of the House of Lords in
Shearson Lehman Bros Inc that as the purpose of inviolability under the VCDR is
to protect the privacy of diplomatic communications, it would be contrary to that
purpose to permit the use of such documents in judicial proceedings when said
privacy is violated by an individual.73 The High Court added that ‘it is the infor-
mation in the document which is the object of the protection conferred by Articles
24 and 27.2, not just the document itself ’.74
However, on 23 May 2014, the Court of Appeal reversed the High Court’s
decision on the admissibility point in the Bancoult (No 3) case holding that the
cable released by WikiLeaks was admissible as evidence.75 The Court of Appeal
considered that it was not bound by the decision of the House of Lords in Shearson
Lehman Bros Inc regarding improperly obtained documents as it was not part of

68  ibid para 43.

69  R (Bancoult) v Foreign & Commonwealth Office (No 3) [2013] EWHC 1502 (Admin), para 40
citing Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2) [1988] 1 All ER.
70  Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2) [1988] 1 All ER, 124 (j). The
documents at issue in the case had, for the most part, been conveyed to third parties by employees of
the ITC with express or implied authority to do so.
71  Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2) [1988] 1 All ER, 124 (j).
72 ibid.
73  R (Bancoult) v Foreign & Commonwealth Office (No 3) [2013] EWHC 1502 (Admin), para 41.
74 ibid.
75  Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2014] EWCA
Civ 708.
2

222 The Protection of Diplomatic Correspondence in the Digital Age

the ratio of the decision. Moreover, the House of Lords addressed a case where the
document had not been obtained through illicit or improper means. The Court
of Appeal considered that, in contrast to the Shearson Lehman Bros Inc case, the
leaked cable in the Bancoult (No 3) case was in the public domain, had not been
obtained from the mission illicitly or by improper means, and the party wishing
to adduce the document as evidence had not been complicit in its publication.76
The Court of Appeal also considered the meaning of the term ‘inviolability’ in
Articles 24 and 27(2) of the VCDR. The court concluded that this term referred
to freedom from any interference on the part of the receiving State, but that it did
not cover admissibility. In interpreting the term ‘inviolability’ the Court of Appeal
considered that the purpose of the immunity conferred by Articles 24 and 27(2)
was to ‘ensure the efficient performance of the functions of the diplomatic mis-
sions’.77 Where the protection against disclosure of documents and archives did
not contribute to the efficient performance of the mission, the Court considered
that the concept of inviolability would not apply. The Court defined ‘inviolabil-
ity’ as ‘freedom from any act of interference on the part of the receiving state’ and
held that ‘the concept of inviolability has no relevance where no attempt is being
made to exercise compulsion against the embassy’.78 Accordingly, Lord Dyson held
that the admissibility of a diplomatic cable leaked by a third party did not violate
Article 24 of the VCDR because it had already been disclosed to the world, stating:
in our judgment, it makes no sense for the concept of inviolability of the mission to be
extended to prevent a document that is in the worldwide public domain from being admit-
ted in proceedings in England and Wales, simply because it emanated from a diplomatic
mission in the UK.79
Therefore, the cable was treated as admissible evidence in court. On the merits, the
Court of Appeal held that even if it had been admitted in evidence, it would have
decided that the decision to create the MPA had not been made pursuant to any
improper motive.
In other countries, WikiLeaks cables have been deemed inadmissible on the
basis that they were illegally obtained, without specific reference to VCDR obliga-
tions. The case of Sener, in the Spanish National Court concerned a US corpor-
ation, Solar Reserve, which had received a contract to build a solar power plant
in Spain.80 Two companies not selected for the contract, Acciona and SENER,
brought a claim before Spain’s National Court claiming misuse of power and that
the decision to award the contract to Solar Reserve was arbitrary. The appeal was
based on a cable released by WikiLeaks which referred to discussions between the
Minister of Energy and the US Ambassador, where the Minister noted that it

76  ibid para 37.

77  ibid para 64. 78  ibid paras 61 and 58. 79  ibid paras 64–​65.
80  Sener Ingenieria y Sistemas SA (Sener), Audencia Nacional, 26 June 2013 SAN 2890/​2013. See
also Méndez R, ‘La Audiencia rechaza los cables de Wikileaks en un recurso de Acciona’ El País, 6
July 2013.
 23

Use of Leaked Diplomatic Cables as Evidence in Legal Proceedings 223

would be difficult for Solar Reserve to ‘jump the queue’ ahead of the companies
that had applied within the specified time period.81
The court rejected the appeal by Acciona and SENER upholding the tender
process and the scoring which awarded the contract to Solar Reserve. In relation to
the cable disclosed by WikiLeaks, the court decided not to take into account this
document. On this point, the court stated that the disclosure of the cables from the
US Embassy constituted illegally obtained evidence whose consideration was for-
bidden in accordance with Article 11 of the Judiciary Act, as had been highlighted
on multiple occasions by the Constitutional Court. The Court reiterated that the
use of evidence obtained through a violation of fundamental rights (in this case
the right to confidentiality of communications) was not consistent with the right
to effective judicial protection or the right to a fair trial.
The UK courts thus provide the most thorough analysis of the question with
the High Court and Court of Appeal in the Bancoult (No 3) case providing two
different and conflicting answers as to the admissibility of a WikiLeaks cable as
evidence. The concern of both courts was whether the admission of the cable as
evidence would amount to a violation of the UK’s obligations under the VCDR.
The Court of Appeal took into account the particular nature of WikiLeaks cables,
the fact that they are already in the public domain and that the person seeking to
rely on the content of the leaked cable was not ‘the violator’ or someone who had
received the document from the violator. The Court of Appeal considered that
the protection of diplomatic documents in the VCDR was functional and that
inviolability was not a value in its own right but rather was only applicable where
it contributed to the effective functioning of the diplomatic mission. The approach
of the High Court, in contrast, offers better protection to the inviolability of diplo-
matic archives, documents, and correspondence. It is noted, however, that the link
between the obligation of a State under Article 24 and a requirement that courts
of a State party should deem documents published by WikiLeaks inadmissible as
evidence is somewhat remote.
Although the contents of the leaked cables may be widely known, allowing the
cables to be used in court has legal consequences which may be detrimental to the
State whose diplomatic archives and documents were unlawfully disseminated.
Diplomats might communicate less freely if they considered that their communi-
cations could be used as evidence against the State they represent in the event that
such communications were accessed without authorization. Accordingly, inter-
preting inviolability to mean that leaked documents are inadmissible in the courts
of VCDR State parties would be consistent with the object and purpose of the
VCDR as it contributes to the effective functioning of diplomatic missions.

81  ‘Spain’s National Court Rejects Appeal from Acciona and SENER Regarding a CSP plant by
SolarReserve’ (CSP World, 8 July 2013) <http://​www.csp-​world.com/​news/​20130708/​001116/​spains-​
national-​court-​rejects-​appeal-​acciona-​and-​sener-​regarding-​csp-​plant> accessed 12 May 2016.
24

224 The Protection of Diplomatic Correspondence in the Digital Age

3.2.2 International courts and tribunals

Before international courts, the use of leaked diplomatic cables as evidence raises
slightly different legal issues. As international courts and tribunals are not organs of
any State, the admission of leaked cables as evidence by a non-​State party will not have
an impact on the VCDR obligations of States. International courts and tribunals have
nevertheless shown some reluctance to rely on leaked diplomatic documents as evi-
dence, including those published by WikiLeaks. This section analyses the practice of
international courts and tribunals in dealing with leaked diplomatic cables submitted
as evidence and the legal issues raised.

3.2.2.1 Non-​State  actors
Leaked cables have also been submitted as evidence by non-​State actors. While both
the European Court of Human Rights and the European General Court avoided rely-
ing on leaked cable evidence to support their decisions, the Special Tribunal for Sierra
Leone demonstrated willingness to address the leaked information.
WikiLeaks cables were submitted as evidence by the applicant at the European
Court of Human Rights in the El-​Masri case.82 The Court, in finding that the allega-
tions of the applicant as to his rendition and detention had been established beyond
reasonable doubt, stated that it drew inference from ‘the available material and the
authorities’ conduct’ to reach its finding.83 The decision does not directly refer to evi-
dence contained in the leaked cable.
At the European General Court, WikiLeaks cables were referred to by an Iranian
bank, Bank Mellat, as evidence that Member States of the European Union, in
particular the UK, were subjected to pressure from the US government to ensure
the adoption of restrictive measures against Iranian entities.84 The Council of the
European Union argued that no account should be taken of the diplomatic cables.85
The Court held that the fact that some Member States were subject to diplomatic
pressure, ‘even if proved’ did not in itself imply that such pressure affected the con-
tested measures.86 The Court thus avoided the issue of whether evidence contained in
leaked cables could be relied upon.
At the Special Tribunal for Sierra Leone, Counsel for the defendant Charles
Taylor filed a motion for disclosure and/​or investigation of alleged US govern-
ment sources within the Tribunal, based on two leaked diplomatic cables pub-
lished by the UK newspaper The Guardian. In a decision of 28 January 2011, the
Trial Chamber held that the cables did not indicate that the US government had
any influence over the organs of the Court or that contacts of the US govern-
ment within the Court had a relationship with the US government that could be

82  El-​
Masri v the former Yugoslav Republic of Macedonia, Application no.  39630/​09, Grand
Chamber, Judgment, 13 December 2012.
83  ibid para 167.
84  Bank Mellat v Council of the European Union (supported by EU Commission), Judgment of the
General Court, Case T-​496/​10, 29 January 2013.
85  ibid para 99. 86  ibid para 103.
 25

Use of Leaked Diplomatic Cables as Evidence in Legal Proceedings 225

considered an interference with impartiality and independence.87 While the Trial
Chamber dismissed the motion, it was willing to consider the content of the cables
and noted in its decision that the cables had been published by The Guardian
newspaper.88

3.2.2.2 States
Independent of rules of procedure of international courts regarding the admissi-
bility of leaked evidence, the submission by a State of a leaked diplomatic cable
as evidence before an international court could potentially constitute a breach of
that State’s obligations under the VCDR. An initial question arising from the use
of leaked diplomatic cables as evidence by States in international legal proceedings
is whether such use constitutes an adoption of the conduct of WikiLeaks for the
purposes of attribution under the law of State responsibility.
Article 11 of the ILC’s ARSIWA provides that conduct which is not attribut-
able to a State under Articles 4–​10 shall nevertheless be considered an act of that
State under international law ‘if and to the extent that the State acknowledges
and adopts the conduct in question as its own’. The commentary to the ARSIWA
indicates that the adoption of conduct for the purposes of attribution goes beyond
mere support or endorsement.89 It is unlikely that the use of a leaked cable would
constitute an adoption of the conduct of WikiLeaks in publishing information
acquired in violation of the inviolability of diplomatic archives. In the United
States Diplomatic and Consular Staff in Tehran case, the ICJ considered that the
adoption by the government of Iran of the acts of private actors as governmental
policy constituted an approval and endorsement of those acts, with the effect that
the conduct of the private actors was attributable to Iran.90 The ARSIWA com-
mentary notes that in the context of that case, conduct described as ‘endorsement’,
‘the seal of official governmental approval’, and ‘the decision to perpetuate’ was
sufficient for the purposes of attribution under Article 11 but that in general mere
support or endorsement would be insufficient for that purpose.91 In none of the
cases where States have sought to use leaked cables as evidence have they explicitly
endorsed the conduct of either Private Manning or the WikiLeaks organization in
publishing cables which have been accessed unlawfully. In the absence of a public
statement specifically adopting the wrongful conduct as its own, it is unlikely that

87  Decision on Urgent and Public with Annexes A-​N Defence Motion for Disclosure and/​or Investigation
of United States Government Sources within the Trial Chamber, the Prosecution and the Registry based on
Leaked USG Cables, SCSL-​03-​1-​T (28 January 2011) <http://​www.rscsl.org/​Documents/​Decisions/​
Taylor/​1174/​SCSL-​03-​01-​T-​1174.pdf> accessed 12 May 2016.
88  ibid (n 15).
89  Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
ILC Yearbook 2001 vol II Pt 2, 53.
90  United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment,
ICJ Reports 1980, 3.
91  Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries,
ILC Yearbook 2001 vol II Pt 2, 53.
26

226 The Protection of Diplomatic Correspondence in the Digital Age

a State could be held directly responsible for the acts of WikiLeaks in accordance
with Article 11 of the ARSIWA.
Aside from the issue of direct responsibility of a State for the conduct of Private
Manning or WikiLeaks, the use of a leaked cable as evidence by a State may vio-
late the obligation of States that diplomatic archives and correspondence shall be
inviolable. As discussed above in the context of national courts, this will depend on
whether obligations regarding the inviolability of diplomatic documents are con-
sidered to relate only to the initial act of unauthorized access or also extend to pre-
vent the use of diplomatic documents that have been obtained unlawfully. So far,
this question has not been the subject of a decision by an international tribunal.
At the ICJ, a reference to a leaked diplomatic cable contained in a footnote
of pleadings to be read out by counsel during oral proceedings in the Interim
Accord case was reportedly removed from the copy of the pleadings circulated to
the President of the Court and interpreters prior to proceedings by the Registrar.
The verbatim records of pleadings in the case available on the ICJ website contain
a reference to WikiLeaks documents.92 The Court does not refer to any WikiLeaks
sources in its decision in the case.
In the ConocoPhillips v Venezuela ICSID arbitration, Venezuela requested the
arbitral tribunal to reconsider its previous decision on jurisdiction and merits in
the case, referring, inter alia, to evidence contained in a US diplomatic cable leaked
by WikiLeaks.93 In a decision of March 2014 the arbitral tribunal concluded that
it did not have the power to reconsider its previous decision. Thus it did not make
a decision regarding the status of the cable submitted by Venezuela. Similarly,
in Kılıç İnşaat İthalat İhracat Sanayi ve Ticaret Anonim Şirketi v Turkmenistan,
Turkmenistan (as well as the claimant) submitted WikiLeaks evidence in support
of its arguments, but the ICSID tribunal made no reference to the cables in its
analysis.94
The question of the admissibility of WikiLeaks cables as evidence arose in
the arbitration between Mauritius and the UK under Annex VII of the United
Nations Convention on the Law of the Sea (UNCLOS). The dispute concerned
the same facts that were at issue in the Bancoult legislation before the UK Courts.95
Mauritius challenged the compatibility of the declaration by the UK of an MPA
around BIOT with the UK’s obligations under UNCLOS. Mauritius submitted
the diplomatic cable at issue in Bancoult as evidence as to the motive behind the

92  Public sitting held on Tuesday 22 March 2011, at 10 am, at the Peace Palace, in the Case Concerning
Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v
Greece), CR 2011/​6, ns 44 & 108.
93  ConocoPhillips Petrozuata BV, ConocoPhillips Hamaca BV and ConocoPhillips Gulf of Paria BV v
Bolivarian Republic of Venezuela, ICSID Case No ARB/​07/​30.
94  Kılıç İnşaat İthalat İhracat Sanayi ve Ticaret Anonim Şirketi v Turkmenistan, ICSID Case No
ARB/​10/​1, Award (2 July 2013) paras 8.1.10 and 8.1.21.
95  Notification and Statement of Claim of 20 December 2010 in the Dispute Concerning the
‘Marine Protected Area’ Related to the Chagos Archipelago (The Republic of Mauritius v The United
Kingdom of Great Britain and Northern Ireland ) <http://​archive.pca-​cpa.org/​1.%20Notice%20of%20
Arbitration.pdfdc8e.PDF?fil_​id=2583> accessed 12 May 2016.
 27

Use of Leaked Diplomatic Cables as Evidence in Legal Proceedings 227

creation by the UK of the MPA.96 The UK in its Counter-​Memorial stated that
as the document ‘appears to have been obtained illicitly by a person who was not
authorised to obtain it’, it would rely on the inviolability of the document pursu-
ant to Articles 24 and 27(2) of the VCDR.97 Article 293 of UNCLOS provides
that Part XV dispute resolution mechanisms, including Annex VII tribunals, shall
apply the Convention and other rules of international law not incompatible with
the Convention. Accordingly, the arbitral tribunal was required to apply the provi-
sions of the VCDR to the extent that such provisions were not incompatible with
UNCLOS.
The Annex VII tribunal endorsed the English courts’ evaluation, finding that it
saw no basis to question the conclusion reached following the examination of the
relevant individuals, that the content of that meeting was not as recorded in the
leaked cable. The tribunal added that it did not ‘consider it appropriate to place
weight on a record of such provenance’.98 This language suggests that the tribunal’s
reluctance to rely on the WikiLeaks cable was based on the uncertain probative
value of the cable, and not solely on the manner in which it came to be in the
public domain.
The issue facing an international court considering the admissibility of a leaked
cable submitted by a State is similar to that faced by a national court to whom
leaked cables have been submitted, either by a State or a non-​State actor. While
information contained in WikiLeaks cables may be in the public domain, the
use of such evidence may have legal consequences for the State whose diplomatic
archives and documents were unlawfully disseminated. The admissibility of leaked
cables as evidence involves a policy choice by the relevant court. The approach
that best protects the inviolability of diplomatic archives and documents as set out
in the VCDR is that which considers leaked cables inadmissible. This approach
admits that inadmissibility of leaked diplomatic documents as evidence may con-
tribute to the effective functioning of diplomatic missions.

3.3 Remedies
If a State is considered to have violated its obligations under the VCDR through
use of leaked diplomatic cables, its responsibility will be engaged in accordance
with the ARSIWA. Regarding the remedies available to a State whose diplomatic
archives and correspondence have been unlawfully accessed or obtained by another
State, the sensitive nature of the information at issue may lead to such matters

96  Chagos Marine Protected Area Arbitration (The Republic of Mauritius v The United Kingdom of
Great Britain and Northern Ireland ), Memorial of Mauritius, para 7.98 <http://​archive.pca-​cpa.org/​
2.%20Memorial%20on%20Merits1142.pdf?fil_​id=2584> accessed 12 May 2016.
97  Chagos Marine Protected Area Arbitration (The Republic of Mauritius v The United Kingdom of
Great Britain and Northern Ireland ), Counter-​Memorial of the United Kingdom, 234, n 730 <http://​
archive.pca-​cpa.org/​4.%20counter%20memoriale29c.pdf?fil_​id=2586> accessed 12 May 2016.
98  Chagos Marine Protected Area Arbitration (The Republic of Mauritius v The United Kingdom of
Great Britain and Northern Ireland ), Award of 18 March 2015, para 542 <http://​www.pcacases.com/​
pcadocs/​MU-​UK%2020150318%20Award.pdf> accessed 12 May 2016.
28

228 The Protection of Diplomatic Correspondence in the Digital Age

being settled by negotiation, rather than through a public dispute settlement pro-
ceeding drawing attention to the confidential information.
However, for States wishing to enforce the inviolability of their diplomatic
documents by means of international legal proceedings, they may resort to the
ICJ, in accordance with the Optional Protocol to the VCDR, Concerning the
Compulsory Settlement of Disputes (the ‘Optional Protocol’) that provides for the
jurisdiction of the ICJ.
At the Vienna Conference, States were divided as whether to include a dispute
resolution provision in the VCDR text. However, a majority accepted a proposed
amendment, submitted by Iraq, Italy, Poland, and the United Arab Emirates, that
the dispute resolution provision be made into an optional protocol. The draft
optional protocol was subsequently adopted by a large majority.
The Optional Protocol contains provisions for the settlement of disputes ‘aris-
ing out of the interpretation or application of the Convention’. Article I of the
Optional Protocol provides that these disputes shall lie within the compulsory jur-
isdiction of the ICJ. An application can be made to the ICJ by any party to the dis-
pute who is a party to the Optional Protocol. The Optional Protocol also provides
for alternatives means of dispute settlement, namely arbitration or conciliation.
Article II allows parties to agree, within two months of notification of the dispute,
to settle the dispute via arbitration, while Article III allows the third option of con-
ciliation. In the case of conciliation, the Conciliation Commission must make its
recommendations within five months, and if not accepted within two months by
the parties, either party can commence proceedings in the ICJ.
Despite the broadly held view of ILC members that the option of third party
adjudication would be necessary, the nature of diplomatic disputes has meant
that States resolve such disputes through political channels and that the Optional
Protocol has rarely been used. There is, of course, one very well-​known case in
which the Optional Protocol was invoked as a basis of jurisdiction, namely the
United States Diplomatic and Consular Staff in Tehran case.99 In that case both Iran
and the United States had signed and ratified the Optional Protocol without reser-
vations. The United States based its claims on four treaty obligations, one of which
was the VCDR and the Optional Protocol. The ICJ made it clear that:
Optional protocols manifestly provide a possible basis for the Court’s jurisdiction with
respect to the United States’ claim under the Vienna Conventions of 1961 [VCDR] and
1963. It only remains therefore whether the present dispute in fact falls within the scope
of their provisions.100
The ICJ looked at the claims of alleged violations of Iran’s obligations under the
VCDR and the VCCR with respect to the inviolability of the United States diplo-
matic premises and the archives, inter alia. The ICJ held that ‘[b]‌y their very nature
all these claims concern the interpretation or application of one or other of the

99  Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America
v Iran) ICJ Reports 1980, 3.
100  ibid 24, para 45.
 29

Conclusions 229
two Vienna Conventions’.101 The ICJ also held that Articles II and III regarding
arbitration and conciliation respectively do not apply unless recourse to arbitra-
tion and conciliation has been proposed by one of the parties to the dispute and
the other has expressed its readiness to consider the proposal.102 Neither party had
proposed such alternative methods of dispute settlement. In fact, Iran had refused
to enter into any discussion of the matter.
The ICJ ruled that the failure of Iran to take appropriate steps to ensure the
protection of the United States Embassy in Tehran constituted in itself a ‘clear
and serious’ violation of Article 22, paragraph 2 (special duty to protect the prem-
ises of the mission), and Articles 24 (inviolability of archives and documents), 25
(duty to accord full facilities), 26 (freedom of movement and travel), 27 (freedom
of communication and inviolability of the diplomatic bag), and 29 (inviolability
of the person of a diplomatic agent) of the VCDR, and Articles 5 (consular func-
tions), and 36 (freedom of communication) of the VCCR. Similarly, with respect
to the attacks on the Consulates at Tabriz and Shiraz, the inaction of the Iranian
authorities also entailed breaches of its obligations under the provisions of several
articles of the VCCR.103
The judgment in favour of the United States had no immediate effect as Iran
failed to observe it. However, Denza believes that it helped the United States put
pressure on Iran, justified the economic sanctions against Iran, and made clear to
the international community that the seizure had no legal basis.104

4. Conclusions

Section 2 concluded that the use of new technology does not in itself require
amendment of the Convention in order to offer full protection to diplomatic
archives and correspondence. However, ambiguities in the VCDR legal framework
become problematic when non-​State actors interfere with diplomatic archives,
with the assistance of new technology. The analysis of section 3, regarding the use
of leaked diplomatic cables, demonstrates some of the inadequacies of the pro-
tection of diplomatic documents set out in the VCDR. While Article 24 clearly
states that diplomatic archives are inviolable, it does not provide an answer as to
whether this inviolability extends to the use of diplomatic cables intercepted by a
third party. International courts and tribunals have approached the question on an
ad hoc basis and for the most part have avoided giving a definitive answer. The UK
Courts, in contrast, have considered the question in detail, but the High Court
and Court of Appeal reached opposite conclusions, both on the basis of plausible
legal reasoning.
The provisions of the VCDR do not provide a clear answer as to how courts
should deal with evidence leaked by third parties. An amendment to the VCDR

101  ibid 25, para 46. 102  ibid 26, para 48. 103  ibid 26, para 67.
104  Denza (n 7) 515.
230

230 The Protection of Diplomatic Correspondence in the Digital Age

could clarify what the exact obligations of States are in regard to the protection of
diplomatic archives and documents that have been illegally obtained and disclosed
by third parties, and in particular whether the obligations of States as to inviol-
ability amount to a prohibition on reliance on the content of those documents as
evidence in domestic or international legal proceedings.
 231

14
The Diplomatic Duffle Disparity—​A Third
World Perspective
Sana Sud

The VCDR was the first concerted effort towards the codification of diplomatic
relations. Once it was ratified, set parameters were defined for the inviolability of
diplomats in foreign countries rather than erstwhile customary practice1 which was
dependent on the mutual relationship between the States concerned. Although this
did help to bring international diplomacy on an even keel, occasionally the balance
got tilted to the other side. The granting of inviolability to protect the diplomat from
the infringement of his rights in the receiving State has occasionally been misunder-
stood by the diplomat as a licence to foment trouble in that country under the garb
of inviolability, more so when the economic and ideological disparity was apparent.2
In 1961, diplomatic immunity was a necessity for a diplomat in a foreign State
to carry out his official functions without being harassed.3 But in today’s world,
inviolability is acting as a weapon in the hands of the diplomat and the increase
in State-​sponsored terrorism invites a fresh look at its nonchalant abuse.4 At the
time of codification the major concerns regarding the abuse of the inviolability
of the diplomatic bag focused on it being used for contraband goods,5 but in the

1 Paul Gore-​ Booth (ed), Satow’s Guide to Diplomatic Practice (5th edn, Longman, London
1979) 107.
2  Lance Bartholomeusz, ‘Eileen Denza: Diplomatic Law, Commentary on the Vienna Convention
on Diplomatic Relations’ 2009 20(4) Eur J Int Law, 1286, 1288.
3 Hampton Davis (then Assistant Chief of Protocol for Special Protocol Services at the State
Department) stated at a Congressional hearing: ‘You can imagine that if every Tom, Dick and Harry
can be hauled into court because his dog is barking too long, he wouldn’t be able to get his work
done. And it’s not really his work, it’s the work of his state.’ Unknown Author, Judiciary Committee
Hearings, Diplomatic Immunity: Hearings Before the Sub Committee on Citizens and Shareholders Rights
and Remedies of the Committee on the Judiciary United States Senate, 95th Cong (1978), 2nd Session on
S 476, S 477, S 478, S 1256, and S 1257 and HR 781 (Forgotten Books, Washington DC 2015) 129.
4  Zeidman, Amy ‘Abuse of the Diplomatic Bag: A Proposed Solution’ (1989–​1990) 11 Cardozo
Law Review 427, 428.
5  Foreign Affairs Committee (UK), ‘The Abuse of Diplomatic Immunities and Privileges’ HC
Paper 127 (1984–​85), Minutes of Evidence 6 para 29. For an incident emerging after the entry into
force of the VCDR, see ‘Drugs in Diplomatic Luggage’ The Times (London, 13 June 1980):  ‘The
Foreign Office was alerted last night after drugs worth £500,000 were found in diplomatic luggage
bound for the Moroccan Embassy in London. More than 600 lb of cannabis was found in a crate

The Diplomatic Duffle Disparity—A Third World Perspective. Sana Sud. © Sana Sud, 2017. Published
2017 by Oxford University Press.
23

232 The Diplomatic Duffle Disparity—A Third World Perspective

twenty-​first century, the scenario has changed completely, so much so that ‘inviol-
able’ diplomats may, under the cover of diplomatic immunity, carry items that can
threaten the peace and tranquillity of the receiving State.6
Many disturbing events have occurred in the past with the probability of the
situation worsening in the future, because of diplomats exploiting the immunity
of the diplomatic bag. Diplomatic law was instituted to create a balance, as it is the
purpose of law,7 in the interest of two States, not to protect diplomats from flout-
ing the local laws8 of the receiving State. With the pendulum seemingly swinging
the other way, it is imperative to review procedures that can be used to restore the
balance. It is time that the national interest and security of receiving State should
hold the same weight as the protection of diplomats in the receiving State.

1.  The Law and its Abuse

As per age-​old practice, the diplomatic bag customarily held the status of being
inviolable, but such inviolability was not foolproof. An attempt was made to
rectify it in the VCDR. The lack of change in the law was justified so as to pro-
tect the channels of communication between diplomats stationed abroad and
the sending State. It has been seen in retrospect that the diplomatic bag had
been one of the safest means of communication.9 At the time of codification,
inviolability of diplomatic bag was a major concern but with changing times,
where most of the communication now happens in real time through virtual
files over the internet, reliance on the traditional diplomatic bag as a form of
communication might not have the same significance as it had at the time of
codification.10
Diplomatic immunity, unlike other international law principles, is adhered to
as it is based on the principle of reciprocity. If a receiving State refuses to grant
immunity to the diplomats of a sending State, the sending State will in turn not
grant immunity to the diplomats of the receiving State. Thus, to ensure that their

marked “household effects” which was travelling under diplomatic immunity. The crate fell off a fork-
lift truck at Harwich, Essex, and split open, spilling cannabis onto the dock side.’ See also Clifton E
Wilson, Diplomatic Privileges and Immunities (The University of Arizona Press, Tuscon 1967) 136–​37.
6  Eileen Denza, Diplomatic Law (4th edn, OUP, Oxford 2016) 198, and Chuck Ashman and
Pamela Trescott, Diplomatic Crime: Drugs, Killings, Thefts, Rapes, Slavery, and Other Outrageous Crimes
(Acropolis Books Ltd, Washington DC 1987) 190–​223.
7  George Whitecross Paton, A Textbook of Jurisprudence (OUP, Oxford 2007) 37–​38.
8  Rosalyn Higgins, ‘The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom
Experience’ (1985) 79 AJIL 641.
9 Anthony Aust, A Handbook of International Law (2nd edn, Cambridge University Press,
Cambridge 2010) 122.
10  However, see also ‘Diplomatic Bag: The Inside Story’ (BBC Online, London, 10 March 2000)
<http://​news.bbc.co.uk/​2/​hi/​uk_​news/​672786.stm> accessed 20 June 2014, stating that ‘[w]‌ hile
much information is now sent from the Foreign Office to its overseas missions via satellite, the diplo-
matic bag remains a lifeline for embassy staff ’.
 23

The Law and its Abuse 233

own diplomats get all the relevant benefits, the receiving State has to grant those
benefits to the diplomats of sending States.
The granting of diplomatic immunity often creates a dilemma between
obligations under international law and the security of one’s State. It is, in
fact, an age-​old tussle between the supersedence of municipal law versus
international law.
The diplomatic bag has been defined as ‘a package containing official corres-
pondence, and documents or articles intended exclusively for official use, whether
accompanied by diplomatic courier or not and which bear visible external marks
of their character’.11 The bag can be an accompanied bag or an unaccompanied
bag. The diplomatic bag can be transported through various mediums which have
been elaborated under Article 27 of the VCDR.12 In earlier times, bags were, for
security reasons, transported through a diplomatic courier but due to financial
constraints diplomatic bags are now mostly unaccompanied. There is also a provi-
sion for the captain of a ship and the pilot of a commercial aircraft to act as a de
facto courier when transporting the diplomatic bag.13
Article 27(3) clearly mentions that the diplomatic bag cannot be detained or
opened as long as proper external marks have been applied. Article 27(4) qualifies
what constitutes a diplomatic bag functionally (it may contain only articles and
files for official use) and externally (the marks and identification needed).14
The blanket power of immunity granted to the diplomatic bag without any
checks and balances has the ability of being abused and this has been done on
many occasions, a few of which have been documented. There are several instances
where the bag has been used to smuggle drugs, explosives, weapons, art, diamonds,
money, radioactive materials, and even people.15
An incident of kidnapping and abusing the status of the diplomatic bag occurred
in 1964.16 A former Israeli citizen, who had been an interpreter at the Egyptian
Embassy in Rome, was found inside an Egyptian diplomatic bag at the airport in
Rome.17 The Israeli was found to be drugged and gagged inside the diplomatic
bag after authorities had heard muffled noises from the bag. In the end, the Italian
Government declared two Egyptian diplomats persona non grata.18
The weapon used to kill the First Secretary of the Jordanian Embassy in Ankara
in 1985 was smuggled into Turkey in a diplomatic bag from Syria.19

11  ILC Yearbook 1989 vol II Pt 2, 15.    12  VCDR, art 27.   

13 ibid 27(7).   14 ibid.
15  Denza (n 6) 70–​71; and Ashman and Trescott (n 6) 190–​223, stating that ‘[i]‌t is understood that
diplomats will smuggle anything that is profitable, in a diplomatic bag. Further examples are pianos,
whiskey and cigarettes depending on what is in demand.’
16  Denza (n 6) 67; Ashman and Trescott (n 6) 122–​23; Ivor Roberts, Satow’s Diplomatic Practice
(6th edn, OUP, Oxford 2009) 117.
17  Denza (n 6) 67; Roberts (n 16) 117. 18  Denza (n 6) 67.
19  ‘Abu Nidal and Islamic Jihad terrorists assassinated the First Secretary of the Jordanian Embassy
in Ankara, Turkey. The Syrian national charged with the murder confessed that the murder weapon
had been brought into Turkey under diplomatic seal’, Ashman and Trescott (n 6) 220–​21.
234

234 The Diplomatic Duffle Disparity—A Third World Perspective

Another such incident happened with Umaru Dikko, the former Nigerian
Minister of Transportation, who was accused of embezzling enough money to
nearly bankrupt Nigeria.20 Dikko fled to London, but was later kidnapped by a
Nigerian abduction team. Dikko was drugged, chained, and, along with three other
men, put in crates which ‘had the labels indicating their origin “Nigerian High
Commission” and destination “Nigerian Ministry of Foreign Affairs” but had no
official seal’21 or ‘diplomatic bag’ written on it. Before these crates were loaded on a
plane for Nigeria, it was discovered that they were not properly marked as required
under the Vienna Convention. If the crates had been marked properly, four men
might have been successfully shipped out of London in a diplomatic bag.22
The bag has also been used to smuggle out assassins. The Bulgarian Embassy
harboured the attempted assassins of Pope John Paul II and sent one of them to
freedom in a diplomatic bag.23
However, this privilege is not a licence to flout the jurisdiction of the receiving
State. Under Article 41 of the Vienna Convention, diplomats, while being bene­
ficiaries of the relevant immunities, are still bound to follow the local laws of the
receiving State.24 Yet the Convention grants few remedies to the receiving State to
prevent abuse of the diplomatic bag.25 If such abuse is suspected, the only legal
remedy is to protest to the mission or to terminate diplomatic relations.26
To prevent such blatant exploitation of the immunity granted to the diplomatic
bag for its functionality without having to resort to extreme steps, there has been
a long-​standing debate on whether the use of X-​ray scanners, canine sniffers, or
radioactivity detectors to provide a minimal check on the legality of the bags is
permitted.27 The Vienna Convention expressly denies the detention or opening of
the diplomatic bag.28 However, since neither scanning nor other discussed means
had been invented or widely used in 1961, it leaves the door wide open to States
to interpret the Convention.29
The benefit of allowing an interpretation that would allow scanning is that it
would enable the authorities to detect and prevent smuggling.30

20  Bruce Weber, ‘Umaru Dikko, Ex-​Nigerian Official Who Was Almost Kidnapped, Dies’ New
York Times (Africa, 8 July 2014) <http://​www.nytimes.com/​2014/​07/​08/​world/​africa/​umaru-​dikko-​
ex-​nigerian-​official-​who-​was-​almost-​kidnapped-​dies.html>.
21  Denza (n 6) 196.
22 Ashman and Trescott (n 6), 204–​10; Peter Davenport, ‘Mercenaries Held After Kidnap of
Doped Nigerian’ The Times (London, 7 July 1984) 1; see also ibid 2, col 6.
23  ‘After an attempt to assassinate the Pope, the Bulgarian Embassy was reported to have smuggled
one of the attempted assassins out of the country in a truck presented as a diplomatic bag’, United
States Senate, ‘Hearing before the Subcommittee on the Security and Terrorism of the Committee
on the Judiciary’ (24 July and September 1984) 138 <https://​www.ncjrs.gov/​pdffiles1/​Digitization/​
97998NCJRS.pdf> accessed 25 September 2015.
24  VCDR art 41(1). See also Higgins (n 8) 79.
25  Leslie Shirin Farhangi, ‘Insuring against Abuse of Diplomatic Immunity’ (1986) 38:6 Stanford
Law Review 1517, 1527.
26  Denza, (n 6) 123. 27 ibid 200. 28  VCDR art 27(3).
29  Denza (n 6) 126–​27.
30  Foreign Affairs Committee (n 5), Minutes of Evidence, 5, Lori Sharipo, ‘Foreign Relations Law:
Modern Developments in Diplomatic Immunity’ (1990) Annual Survey of American Law 28, 29.
 235

Policies of States Regarding the Scanning of Diplomatic Bags 235

2.  Policies of States Regarding the Scanning

of Diplomatic Bags

Even though scanning is not expressly prohibited by the Vienna Convention some
States have interpreted it as being a ‘constructive opening of the bag’.31 Some
argue that since electronic scanning could damage or decipher documents and/​or
equipment containing sensitive information, it would undermine the very essence
behind the provisions concerning the diplomatic bag—​ie, the protection of free
communication between the sending State and its mission abroad—​and thus can-
not be allowed in the spirit of the Convention.32
Bahrain, Kuwait, Libya, Qatar, Saudi Arabia, and Yemen interpret the provi-
sions of the Vienna Convention as not granting absolute immunity to diplomats.
Therefore, they have entered a reservation to the applicability of Article 27 to the
effect that, if the diplomatic bag holds articles which are not for official purposes,
these States reserve a right to open the bag in front of a diplomat or a person
authorized by the sending State or to return it to the State it came from.33 This is
an adaptation from Article 35(3) of the VCCR or Article 36 of the VCDR which
deals with the personal baggage of a diplomat.
The stance of the United States is that the x-​ray scanning of diplomatic baggage
is equivalent to electronically opening a bag. The United States does not subject a
properly marked and handled diplomatic bag to any form of detection or scanning
and does not want any other State to subject its diplomatic bags to such treatment.
It also feels that States which limit the size and weight of the bag are acting con-
trary to Article 25 of the Vienna Convention.34 As per the US State Department,
they are one of the largest senders of diplomatic bags.35 These stringent measures
can be attributed to the application of the principle of reciprocity.
However, the United States maintains a policy that if credible information is
received that the diplomatic pouch contains articles or documents not intended
for the official use of the diplomat, it reserves the right to reject entry. Such prop-
erly designated diplomatic bags can even be returned to the sending State.36
This is a further modification of diplomatic law as it cannot be derived from the
Convention.
The United Kingdom’s Foreign and Commonwealth Office has expressed the
government’s view that ‘remote examination by equipment or dogs would be

31  Higgins (n 8) 647. 32  Denza (n 6), 241.

33  ‘It must be noted, however, that the practice of challenging a consular bag where it is suspected
to have contained unauthorised contents is still in operation’, Gore-​Booth (n 1), 117. See also VCCR
art 35.
34  US Department of State, ‘Diplomatic Pouches’ <http://​www.state.gov/​ofm/​customs/​c37011.
htm> accessed 22 June 2014.
35  US Department of State, ‘Study and Report Concerning the Status of the Individuals with
Diplomatic Immunity in the United States’ (1988) 55.
36  US State Department, ‘OAS Diplomatic Note no 06-​B:  New Diplomatic Pouch Procedure’
(2014)<http://​www.state.gov/​documents/​organization/​222181.pdf> accessed 12 June 2014.
236

236 The Diplomatic Duffle Disparity—A Third World Perspective

lawful under the Vienna Convention’.37 Although the government has expressed
its view that minimal checks by scanning and sniffer dog are not violative of the
Convention, the United Kingdom has not used any of these methods in examining
diplomatic bags as a receiving State. This can be attributed to its fear that its own
diplomats may be subjected to such examination in accordance with the principle
of reciprocity. Thus scanning and any form of internal examination are not consid-
ered except in cases where very strong grounds for suspicion exist.38 In fact, when
Kuwait started scanning diplomatic bags in 1984, the UK led the international
protest against it.39
The Canadian government holds the stance that electronic scanning of diplo-
matic bags amounts to constructive opening of the bag and is an ‘unacceptable
breach’. It does have a policy of ‘challenge and return’ due to ‘public safety and civil
aviation security considerations and the need to safeguard against abuses’ in cases
of serious suspicion.40
The New Zealand government ‘based on its acknowledgment of the fact that
electronic screening could, in certain circumstances, result in the violation of the
confidentiality of the documents contained in a diplomatic bag’ stated that in their
view electronic screening was not permitted under the VCDR.41
Turkey also prohibits scanning and checking and has a weight limit of 30 kg
per bag. Any diplomatic bag exceeding that limit has to have its contents dis-
closed in a ‘takir’ which has to be approved by the Ministry of Foreign Affairs
of Turkey.42 The diplomatic bag is expected to be of both reasonable height and
weight. Furthermore, any baggage weighing beyond 30 kg and arousing serious
concerns about its content can be opened in the presence of a member of the dip-
lomatic mission with the approval of the Ministry of Foreign Affairs in Turkey.43
Israel also has a policy of scanning all baggage regardless of the question whether
their carriers are holders of diplomatic passports.44
Egypt, due to the revolution that engulfed the country in 2012, has started x-​
raying diplomatic bags to check for illegal weapons being imported.45

37  Higgins (n 8) 647.

38  HM Revenue and Customs (UK) ‘DIPPRIV2100—​Diplomatic bags: overview’ <http://​www.
hmrc.gov.uk/​manuals/​dipprivmanual/​dippriv2100.htm> accessed 14 June 2014.
39 ibid.
40  Gergő Pasqualetti, ‘Carry on Excellencies!’ (2012) 9:1 Miskolc Journal of International Law 43,
49  <http://​epa.oszk.hu/​00200/​00294/​00018/​pdf/​EPA00294_​miskolc_​journal_​2012_​01_​03_​pasqualetti1.
pdf> accessed 23 May 2014; see also Kim Zetter, ‘TSA Leaks Sensitive Airport Screening Manual’
(Wired, 7 December 2007) <http://​www.wired.com/​threatlevel/​2009/​12/​tsa-​leak/​> accessed 22
June 2015.
41  ILC Yearbook 1988 vol II Pt 1, 147; also see Pasqualetti (n 40) 47.
42  Republic of Turkey, Ministry of Foreign Affairs, ‘Diplomatic Bags’ (31 May 2005–​216950)
<http://​www.mfa.gov.tr/​31_​05_​2005-​-​216950-​diplomatic-​bags.en.mfa> accessed 18 June 2014.
43 ibid.
44  Israel, Ministry of Foreign Affairs, Protocol Division ‘Being a Diplomat in Israel’ (Jerusalem,
October 2008), 76 <http://​mfa.gov.il/​MFA_​Graphics/​MFA%20Gallery/​Documents/​Being_​a_​Diplomat2.
pdf> accessed14 June 2014.
45  ‘Egypt Screens Diplomatic Bags after Weapons Claim’, Business Standard (Cairo, 7 February
2011) <http://​www.business-​standard.com/​article/​economy-​policy/​egypt-​screens-​diplomatic-​bags-​after-​
weapons-​claim-​111020700197_​1.html> accessed 19 June 2014.
 237

Analysis and Solution 237

India has a compulsory screening process as per the Bureau of Civil Aviation. If
screening of the bags is refused or if it is not possible to scan the bags for explosives,
there is a cooling off period of 24 hours before the bag is granted clearance.46
Pakistan also employs scanning mechanisms for diplomatic bags.47

3.  Analysis and Solution

We can see from the varying policies of States that the most developed countries
generally have no scanning or detection policies but have also allowed themselves
the privilege of opening the bag if they harbour serious doubts about the contents
of the bag or have credible information that an abuse of the diplomatic bag may
have occurred. In those cases, a member of the diplomatic mission must be pre-
sent. If that member refuses the opening of the bag, the bag will be returned to the
sending State.
Many members of the ILC suggested that electronically scanning the diplo-
matic bag would help maintain the delicate balance48 as this is the most frequently
suggested means for the prevention of abuse.49 Scanning can be construed as per-
missible in accordance with Article 27(3) only if it is non-​intrusive and does not
decipher the exact nature of the contents of the bag. Conversely, preliminary scan-
ning might not be useful as it could be relatively easy to deceive the receiving
State’s scanner if the sending State is aware of its limitations. On the other hand,
sniffer dogs and radioactivity detectors, if used, would be in full compliance with
the Convention.50
It can be observed from the above arguments that economically and techno-
logically less able countries are more open to the idea of scanning or the detec-
tion of drugs through sniffer dogs, or the restriction of weight and size of bags
than their counterparts in most developed countries. At the outset, in the 1970s
when scanning of baggage became popular in airports, it was the developed States
which adopted the interpretation that scanning did not violate Article 27(3) of the
Convention.51 But very quickly they changed their minds and started attaching
more weight to the principle of inviolability.52 It is no secret that the stance of the

46  Yatish Yadav, ‘US Officials Invoke Vienna Convention for Diplomatic Bag’ The New Indian
Express (New Delhi, 19 December 2013) <http://​www.newindianexpress.com/​nation/​US-​Officials-​
Invoke-​Vienna-​Convention-​for-​Diplomatic-​Bag/​2013/​12/​19/​article1953288.ece> accessed 8 July 2014.
See also ‘IB Doesn’t Trust Us, Delhi Keeps Opposing Us, Complained US’ The Indian Express
(New Delhi, 22 March 2011) <http://​archive.indianexpress.com/​news/​ib-​doesn-​t-​trust-​us-​delhi-​
keeps-​opposing-​us-​complained-​us/​765501/​> accessed 8 July 2014.
47  ‘Western Missions Oppose Diplomatic Bag Scanning’ (Dawn, 10 May 2010) <http://​www.
dawn.com/​news/​857373/​western-​missions-​oppose-​diplomatic-​bag-​scanning> accessed 23 July 2014.
48  ILC Yearbook (1986) vol I, 42. Mr Chafic Malik expressed the opinion that ‘[s]‌ince electronic
and mechanical devices were proving quite effective in preventing acts of sabotage against civil aircraft,
examination of the diplomatic bag . . . by such means should be permitted’.
49  ‘Thorny Issue: Peeking into a Privileged Pouch’ The New York Times (1 August 1988), at B6.
50  Anthony Aust (n 9) 124. 51  Pasqualetti (n 40) 46.
52  ‘The UK Government in its 1985 review of the Vienna Convention noted the alternative view
that any method for finding out the contents of the bag is tantamount to opening it, which is illegal’,
238

238 The Diplomatic Duffle Disparity—A Third World Perspective

developed States is informed by the principle of reciprocity which makes it likely

that their own diplomats will be treated the same way in other States.53
This is the case because the most developed States have the relevant techno-
logical capability and know how to detect any article of serious concern in diplo-
matic bags while maintaining their stance of inviolability by not using the standard
preliminary methods for detection.54 This would, however, restrain developing
States from officially employing the necessary equipment or other preliminary
means of discovering the nature of the contents of diplomatic bags. Thus, the most
developed countries have an unfair advantage in practice55 which runs counter to
the entire basis of the VCDR.
The violation of diplomatic immunity by the receiving State is not a new devel-
opment but is an age old practice by those States which have the technological
and economic means to do so. In 1999 the United States government found out
that a Russian Attaché had placed a listening device in the conference room of
the US State department and was spying on their activities.56 In 2001 it was dis-
covered during a trial that the FBI had built a tunnel under the Soviet Embassy
in Washington to eavesdrop on it and also conducted guided tours for senior FBI
personnel to show their capacities.57
As mentioned earlier in this book,58 diplomatic immunity is based on a num-
ber of theories; one of the oldest being the theory of personal representation
which operates on the premise that the diplomat is to be given the same privileges
and immunities as that of a visiting foreign sovereign as he acts on behalf of the
sovereign.
It has been claimed by a US intelligence contractor that the United States has
been monitoring thirty-​five world leaders, including those of Germany, Mexico,
and Brazil,59 across the globe.60 From this we can draw the conclusion that, if US
can violate the privacy of sovereigns in their own countries where US has no jur-
isdiction, it definitely would claim the ability of violating the immunity of their
representatives on its own territory where, as per the Convention, the receiving
State has no jurisdiction either.

Denza (n 6) 195. See also ILC Yearbook vol II Pt 1, 147. The US State Department also takes the view
that ‘any provision which would allow scanning of the bag risks compromising the confidentiality of
sensitive communications equipment’, Unknown Author (n 3); Pasqualetti (n 40) 46.
53  Pasqualetti (n 40) 53.
54  ILC Yearbook (1989) vol II Pt 2, 43: ‘… the inclusion of this phrase was necessary as the evo-
lution of technology had created very sophisticated means of examination which might result in the
violation of the confidentiality of the bag, means which furthermore were at the disposal of only the
most developed states’.
55  Bartholomeusz (n 2) 1286. 56 ibid 1288. 57 ibid. 58  See Chapter 1.
59  Mark Landler and David E Sanger, ‘Obama May Ban Spying on Heads of Allied States’ The New
York Times (28 October 2013) <http://​www.nytimes.com/​2013/​10/​29/​world/​europe/​obama-​may-​
ban-​spying-​on-​heads-​of-​allied-​states.html?pagewanted=all&_​r=0> accessed on 12 May 2014.
60  James Ball, ‘NSA Monitored Calls of 35 World Leaders after US Official Handed over Contacts’
The Guardian (25 October 2013) <http://​www.theguardian.com/​world/​2013/​oct/​24/​nsa-​surveil-
lance-​world-​leaders-​calls> accessed 14 June 2014.
 239

Analysis and Solution 239

Furthermore, on being questioned the United States government stated
that ‘it will cease all collection of intelligence from friendly States’,61 leaving
enough space to speculate that it has not ceased to collect ‘intelligence infor-
mation’ from hostile foreign leaders or in certain instances allies that have
turned hostile.62
New Zealand also had developed plans with National Security Agency hackers
to hack into the Chinese Embassies in Auckland to attain information.63
There are also claims that Russia, another former superpower, had violated the
privacy of heads of States who were attending the G20 summit through the use
of pen drives which were capable of downloading sensitive information from their
laptops.64
The same US intelligence contractor further alleges that the US government had
been spying on the diplomatic missions of the European Union in Washington and
New York, and even on the building in which EU Summits are held in Brussels.65
Also, computers in these diplomatic premises were hacked, which is a violation of
Article 22 of the Vienna Convention (it constitutes an abuse of the inviolability of
diplomatic premises).66
United Nations personnel are also granted similar rights under Article 105(1) of
the UN Charter which states clearly that the UN has immunity and privileges to
the extent needed for functional necessity, similar to the justification for the diplo-
matic immunity under the Vienna Convention. This is also guaranteed under the
Article III Section 3 of the General Convention on the Privileges and Immunities
of the United Nations of 1946 to which the United States, the United Kingdom,
France, and Russia are party.67 Article III Section 10 also gives the UN personnel
the same privileges when they are despatching and receiving their correspondence
by courier or in bags. Such couriers and bags have the same immunities and privi-
leges as diplomatic couriers and bags.68
It is important to note the words of Richard Butler, the former UN Chief
Weapons Inspector for Iraq, who observed that while he was serving in that pos-
ition, his ‘calls from the UN were monitored by the United States, the United

61  Lander and Sanger (n 59). 62 ibid.

63  David Fisher, ‘Leaked Papers Reveal NZ Plan to Spy on China for US’ The New Zealand Herald,
(19 April 2015) <http://​www.nzherald.co.nz/​nz/​news/​article.cfm?c_​id=1&objectid=11434886>
accessed 16 June 2014. See also Ryan Gallagher and Nicky Hager, ‘New Zealand Plotted Hack on
China With NSA’ The Intercept (18 April 2015) <https://​firstlook.org/​theintercept/​2015/​04/​18/​new-​
zealand-​china-​gcsb-​nsa-​auckland-​hack/​> accessed 16 June 2014.
64  Nick Squires, Bruno Waterfield, and Peter Dominiczak, ‘Russia Spied on G20 Leaders with
USB Sticks’ The Telegraph (29 October 2013) <http://​www.telegraph.co.uk/​news/​worldnews/​europe/​
russia/​10411473/​Russia-​spied-​on-​G20-​leaders-​with-​USB-​sticks.html> accessed 18 June 2014.
65  Derek Scally, ‘Tricky Leaks: Snowden vs NSA’ The Irish Times (28 December 2013) <http://​
www.irishtimes.com/​news/​world/​tricky-​leaks-​snowden-​vs-​nsa-​1.1634632> accessed 4 July 2014.
66  VCDR art 22.
67  Convention on the Privileges and Immunities of the United Nations (adopted 13 February
1946, entered into force 17 September 1946) 1 UNTS 15.
68  Bartholomeusz (n 2) 1288.
240

240 The Diplomatic Duffle Disparity—A Third World Perspective

Kingdom, France and Russia’. He said that when he wanted to make unmonitored
calls, ‘he would leave the UN building’ to do so,69 indicating the blatant violation
of obligations under International law.
A former member of British Prime Minister Tony Blair’s cabinet asserted that
British intelligence services monitored UN Secretary-​General Kofi Annan’s telephone
conversations in the period leading up to the war in Iraq in 2003. Allegedly, this was
done by placing bugging devices in Mr Annan’s office.70 The General Convention on
the Privileges and Immunities of the United Nations, however, gives the Secretary-​
General and all Assistant Secretaries-​General ‘the privileges and immunities, exemp-
tions and facilities accorded to diplomatic envoys, in accordance with international
law’.71
A proven history of violations of the personal immunity of sovereigns, United
Nations personnel and premises, and diplomatic missions leads to the conclusion
that it is probable that the same perpetrators will also adopt measures to detect
the contents of diplomatic bags, as they definitely have the relevant technological
proficiency.72
Moreover, there have also been allegations that the United States has developed
a remote scanner which can scan items from a distance of up to 50 metres which
is more than enough to keep the portable scanner out of sight and scan without
the knowledge of the diplomatic courier or any other observer.73 It also employs
x-​ray scanners in vans, known as Z Backscatter Vans, which have the capability of
scanning an entire vehicle which passes them, to detect bombs and explosives.74
Allegedly, Russian scientists have developed a similar technology of detecting traces
of explosives from 5 metres away.75

69 ‘UN Bugging Scandal Widens’ BBC News World Edition (27 February 2004) <http://​news.
bbc.co.uk/​2/​hi/​asia-​pacific/​3492146.stm> accessed 17 July 2014; see also Frederic L Kirgis, ‘Alleged
Monitoring of United Nations Telephone Calls’ The New York Times, (10 March 2004).
70 Brian Whitaker and agencies, ‘Bugging Devices Found at UN Offices’ The Guardian (18
December 2004) <https://​www.theguardian.com/​world/​2004/​dec/​18/​iraq.iraq> accessed 20 July 2014.
71  Convention on the Privileges and Immunities of the United Nations (n 67), Article V, Section 19.
72  ‘Surprisingly, airport scanners are more often used by less wealthy States than superpowers.
Presumably this is because big players already possess various sophisticated means to discover the con-
tents of suspicious packages even well before security checkpoints […] so they can afford the luxury
of not having to screen other States’ diplomatic bags and to claim on the basis of reciprocity that their
own bags should not be screened’, Pasqualetti (n 40), 52.
73 ‘Hidden Government Scanners Will Instantly Know Everything about You From 164 Feet
Away’ Gizmodo (10 July 2012) <http://​gizmodo.com/​5923980/​the-​secret-​government-​laser-​that-​
instantly-​knows-​everything-​about-​you> accessed 15 December 2016.
74  Scott W Kendall, ‘Comment Taking It to the Streets: Uncovering the Secret Mobilization
of Backscatter X-​Ray Technology and the Concerns Surrounding its Use’ (2013) Houston Law
Review 609; Conor Friedersdorf, ‘The NYPD Is Using Mobile X-​Ray Vans to Spy on Unknown
Targets’ The Atlantic (New York, 19 October 2015) <http://​www.theatlantic.com/​politics/​arch-
ive/​2015/​10/​the-​nypd-​is-​using-​mobile-​x-​rays-​to-​spy-​on-​unknown-​targets/​411181/​> accessed 12
December 2016.
75  Sergei M Bobrovnikov, Evgeny V Gorlov, Victor I Zharkov, Yury N Panchenko, ‘Lidar Detection
of Explosive Traces’ (2016) EPJ Web of Conferences 27001 <http://​www.epj-​conferences.org/​articles/​
epjconf/​pdf/​2016/​14/​epjconf_​ilrc2016_​27001.pdf> accessed 15 December 2016.
 241

Analysis and Solution 241

The technology of remote scanning is very much prevalent in society,76 and
is already being employed in various European airports.77 Any extrapolation
from this forces us to accept the stark reality that the contents of the diplomatic
bags in the most developed nations (which possess the relevant technological
capability), are an open secret, damaging the sanctity they once had. Thus to
maintain the equilibrium between technologically and economically capable
countries and the rest of the States of the world, which was the purpose behind
the conception of the Vienna Convention, there is need for a minimal amount
of scanning of diplomatic bags.78 Once that amount of scanning is officially
accepted, the need to covertly examine the bag should be obviated. This will
serve a threefold purpose: firstly, it would help maintain an equal power equa-
tion vis-​à-​vis the immunities granted to foreign diplomats; secondly, with overt
checking it will ensure that scanning is only carried out to the extent sanctioned
by law and that the sanctity of the bag is not violated, and thirdly—​and most
importantly—​it will curb abuse of the bag and restore it to its former use, that
of transporting official documents and articles.
However, this also raises certain issues. Firstly, what will be the minimum stand-
ard to be used for scanning of bags? Secondly, one has to make sure that the liberty
of minimal scanning does not tip the scales back in the favour of the receiving
States so that they are able to interfere or harass the diplomats.
Even at the time of conception of the Vienna Convention, the international
community was well aware of the possibility of abuse of the bag;79 hence the need
for insertion of Article 27(4) to make certain that the diplomatic bag would be
used only for transporting official documents and articles. However, the drafters
were unable to put adequate mechanisms in place to ensure that the law is not
abused. In effect, even though Article 27(4) very explicitly referred to the materials
which constitute the contents of the bag, the Vienna Convention left no means of
ensuring that this rule would be followed. On the contrary, it made the bag fully
inviolable if it had the requisite diplomatic markings on it, in turn making Article
27(4) effectively redundant.
One can infer that to ensure compliance with Article 27(4) and that the dip-
lomatic bag does not pose a security threat, a minimum amount of scanning is
crucial.
Thus as elaborated above, States can employ canine sniffers to detect smuggling
of narcotics and living beings, radioactivity detectors can be employed to safeguard
against the transfer of bombs. The ILC discussed the possibility of using sniffer

76  Kendall (n 74) 622.

77  Ben Vogel, ‘Brussels Embraces Remote Screening for Centralised Checkpoint’ (IHSAirport360,
15 July 2014) <http://​www.ihsairport360.com/​article/​4496/​brussels-​embraces-​remote-​screening-​for-​
centralised-​checkpoint> accessed 13 June 2014; see also ‘Centralised Remote Screening’(OptoSecurity,
eVelolcity Integrated Security Software) http://​www.optosecurity.com/​checkpoint-​screening-​solutions/​
evelocity/​overview/​ accessed 28 July 2014.
78  Pasqualetti (n 40) 12.
79  Montell Ogdon, Juridical Bases of Diplomatic Immunity (John Byrne & Co, Washington DC
1936), 10–​30.
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242 The Diplomatic Duffle Disparity—A Third World Perspective

dogs to sniff out narcotics, as they were deemed to be a non-​intrusive means of

examination, and as such examination was not enough to read the contents of the
bag in general.80 There may also be use of minimal x-​ray scans which can be taken
in the presence and in view of a representative of the diplomatic mission or the
diplomatic courier if States accept this. However, such a scan has its shortcom-
ings: the outline of the contents can easily be forged to fool the machine once the
mechanisms of operating it are known. Moreover, a lingering doubt may remain in
the minds of the sending State as to whether it is the only scan being done.
An alternative option is that which is adopted by Turkey ie, to stipulate a fixed
weight/​size for each diplomatic bag so as to keep some sort of check on the quan-
tity to be transmitted. Anything beyond a reasonably decided uniform weight81
has to be declared and confirmed by the sending State. As it is the object of the
Vienna Convention to maintain the sanctity of the bag, which should only be
carrying official documents and articles, it suffices to say that files and paperwork
for official use should not exceed a reasonable weight and should not exceed a rea-
sonable standard.
It would also help if Article 35 of the VCCR were made applicable through
interpretation to Article 27(3) of the VCDR. Six States, even though they ratified
the VCDR, expressly stated by means of reservations that the provision of Article
35 VCCR will be their practice for dealing with diplomatic bags governed by the
VCDR as well.82 This principle was also present as a part of customary law before
the advent of the VCDR and should be reinstated as a continuing practice. Even
in the commentary of the ILC, it was admitted that in exceptional cases, where
there is a serious concern as to the inappropriate nature of the goods transported
through diplomatic bags, receiving States have, with the prior permission of their
Ministry of External Affairs, opened the bag in the presence of a member of the
diplomatic mission.83 Many States, such as Canada,84 the United Kingdom,85 and
the United States86 along with Turkey87 also use the same practice in exceptional
cases when there is a threat to security.
The major concern after adopting this procedure in practice would be the abuse
of this provision by the receiving State. This too can be kept in check through cer-
tain provisions. There is, first and foremost, the implicit rule of reciprocity:88 if a
State wrongly and without sufficient reason detains or opens the bag, it must fear
that its own diplomats will get the same treatment. This in itself is sufficient, as it
is the reason why scanning has not been introduced in the first place.

80  Mr Yankov observed to the International Law Commission that ‘[s]‌niffer dogs are unlikely to
be so well educated that they could read the contents of a diplomatic bag’, ILC Yearbook (1988) vol
I, 232.
81  Republic of Turkey, Ministry of Foreign Affairs (n 42).
82  Vienna Convention on Consular Relations (adopted on 24 April 1963), 500 UNTS 95.
83  Pasqualetti (n 40) 45. 84 ibid. 85  HM Revenue and Customs (UK) (n 37).
86  US State Department (n 35).
87  Republic of Turkey Ministry of Foreign Affairs (n 42).
88  Pasqualetti (n 40) 47; Higgins (n 8) 647.
 243

Analysis and Solution 243

Secondly, there should be an independent institution; an organ of the General
Assembly which would have representatives of all member States of the VCDR
and in which no State has a veto power. Any case of misuse of diplomatic power
by diplomats or harassment by the receiving State could be discussed in such a
forum. Failure to resolve the issue should be brought to the ICJ as provided under
the Optional Protocol of the VCDR89 for the States that ratified it. There is how-
ever a drawback to this: firstly, only sixty-​six States90 are party to this Protocol.
Furthermore, the United States,91one of the largest senders of diplomatic bags, is
no longer party to this Protocol, thus making it to an extent redundant when it
comes to putting countries on equal footing.
Also, the ICJ has long been suspected of having the force of the developed States
behind it,92 thus diminishing the fairness of the decision. Furthermore, for those
States which are not party to the Protocol, the ICJ has jurisdiction which relies on
the consent of the parties, and States have the option not to subject themselves to
the Court’s jurisdiction or to withdraw midway through proceedings.93
Alternatively one can formulate an independent specialized tribunal which can func-
tion along the lines of the WTO Dispute Settlement Body (DSB) which works on the
principle of members of the DSB being drawn from each member State of the WTO
Agreement and of ratification of the relevant award which has binding effect on the two
States. If the affected States are unwilling to adhere to such an award, the member States
of a diplomatic DSB could remove all diplomatic relations with the non-​complying
party. Other forms of disapproval could be adopted too, like economic sanctions, which
could put added pressure on States to adhere to the award. There could also be a form of
appeal to satisfy States concerned about the possible appearance of bias.
The major flaw in this system and that of the ICJ’s compulsory jurisdiction is to
get all VCDR member States to become parties to this forum.
There is however a consideration on which countries would accept this forum
of adjudication. It is to be seen in the premise on which diplomatic relations rest:
the fact that disputing States have a fundamental interest to retain good relations
with other States, as no State can survive alone. International relations have been
sculpted to a large extent on the basis of economic interests of States, as it was the
reason behind colonial States exploring the world for raw materials and markets in
the era of industrial development and the era of colonialization, and it retains its
relevance today, as has been seen when Iran signed the nuclear deal in 2015, so that
the economic sanctions against it would be removed.94

89 Optional Protocol to the Vienna Convention on Diplomatic Relations, Concerning the

Compulsory Settlement of Disputes (18 April 1961, Adopted on 24 April 1964) 596 UNTS 261.
90 ibid. 91 ibid.
92  Eric A Posner and Miguel FP de Figueiredo, ‘Is the International Court of Justice Biased?’
(2005) 34 Journal of Legal Studies 624 <http://​www.ericposner.com/​Is%20the%20International%20
Court%20of%20Justice%20Biased.pdf> accessed 22 November 2015.
93  Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v U.S.) (Separate opin-
ion of Judge Ago) [1986] ICJ 14, 181.
94  Unites States Department, ‘Joint Comprehensive Plan of Action’ <http://​www.state.gov/​e/​eb/​
tfs/​spi/​iran/​jcpoa/​> accessed 20 November 2015.
24

244 The Diplomatic Duffle Disparity—A Third World Perspective

Moreover, if every State is a participatory member of both the forum and the dip-
lomatic DSB, it would work as a democratic decision-​making body and will hold
the approval of the international community. The subset of the General Assembly
could act as a specialized forum to discuss the tenacious relationships between
nations thus avoiding having to wait for discussion in the General Assembly,
which already has a lot of issues on its agenda. This would create a certain fear
in the minds of both diplomats and receiving States and enforce abidance by the
Convention through its deterrent effect. As mentioned earlier, without a body to
guarantee adherence to the law, it is difficult for it to be observed. This body will
maintain the delicate balance on which the principles of diplomatic law reside.

Conclusion

Diplomatic law’s main purpose is to create trust between States to facilitate their
relations with one another by providing uniform rights and duties. It is up to
the States to either abuse those privileges or to use them for better relations. We
can observe from history that international law does not flourish in circumstances
where all States are not given equal status95—​as was the case during the Roman
Empire, which had developed rudimentary elements of diplomatic law, but could
not advance it due to its hegemonic rule. The same holds true in today’s world. If
the most developed nations continue acting in a manner which does not give equal
status to all States, it would be difficult for diplomatic law and international rela-
tions to flourish. Thus the above measures of minimal screening should be adopted
to guarantee an even playing field for all States involved.

95 Maria Moutzouris, ‘Sending And Receiving:  Immunity Sought By Diplomats Committing

Criminal Offences’ Rhodes University 64; Linda Frey and Marsha Frey, The History Of Diplomatic
Immunity (Ohio State University Press, Ohio 1999) 6 and 57; Eileen Young, ‘The Law of Diplomatic
Relations’ 40 (1964) British Yearbook Of International Law 143.
 245

Part V
Diplomatic Duties
246
 247

15
Legal Duties of Diplomats Today
Sanderijn Duquet and Jan Wouters

1. Introduction

International diplomatic law lays down comprehensive obligations to be observed

by sending States and their diplomats in their relations with receiving States. These
duties fulfil a key role in the diplomatic system. Even before the coming into
force of the VCDR, customary international law had already clearly established
diplomatic obligations. Moreover, legal scholars noted the existence of a strong
moral responsibility of diplomats to respect obligations in the receiving State.1
However, even the most duty-​bound diplomat may find him-​or herself under
conflicting legal (and sometimes moral) obligations when posted abroad. Should
one publicly condemn a grave human rights violation that occurred in a receiving
State? Can a diplomatic mission support a good cause by raising funds or aware-
ness? A modern take on the performance of diplomatic functions seems to require
that diplomats engage with the public and employ new communication methods.
The present chapter aims to trace how norms on diplomatic duties—​which obvi-
ously have further developed since the coming into force of the VCDR—​affect
the current conduct of diplomatic relations. Its central tenet is that the Vienna
Convention, against the backdrop of global changes and related diplomatic chal-
lenges, provides a remarkably stable and flexible legal framework for the conduct
of diplomatic activities. It is truly a living instrument that allows for creativity
in its application. Many States have seized its potential, both as receiving and
sending States. Receiving States, for instance, have found alternative judicial and
non-​judicial ways to request diplomats to comply with their obligations. Sending
States, from their side, relentlessly attempt to blend the performance of diplomatic
functions—​most prominently the ascertaining of conditions in the receiving State
and the protection of the interests of the sending State and of its nationals—​with
their adherence to diplomatic duties. These dynamics test the limits of the diplo-
matic system and result in fascinating diplomatic practices worldwide.

1  Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations

(4th edn, OUP, Oxford 2016) 374 and references therein.

Legal Duties of Diplomats Today. Sanderijn Duquet and Jan Wouters. © Sanderijn Duquet and Jan
Wouters, 2017. Published 2017 by Oxford University Press.
248

248 Legal Duties of Diplomats Today

Following this introduction we investigate the nature of diplomatic duties. Using
recent examples of diplomatic incidents in State practice, we comment upon the five
main obligations of diplomats under Articles 41 and 42 of the Vienna Convention.
Based on empirical evidence, we reflect on the extent to which the obligations of
diplomats outlined by the Vienna Convention meet the demands of today’s world
(section 2). The seeking of compliance with these obligations is the central theme of
the third part of the chapter. Following a discussion of the addressees of the duties
(individual diplomats, diplomatic missions, and the sending State), our focus shifts
to the point of view of receiving States seeking to hold diplomatic agents accountable
for breaching their obligations under international and national law (section 3). Some
concluding reflections are offered at the end of the chapter (section 4).

2.  The Obligations of Diplomats as Conceived in the VCDR

The Vienna Convention covers a wide variety of topics which relate to the send-
ing and receiving of diplomats. The majority of these concern the rights of diplo-
mats, conceptualized as immunities, inviolabilities, privileges, and entitlements.2
These far-​reaching restrictions on the sovereignty of States would not have with-
stood the test of time if no strings would have been attached. Indeed, the quasi-​
unchallengeable rights of diplomats bring about a wide range of obligations that
receiving States have to observe. Therefore literature often notes that most, if not
all, duties of diplomats serve as the corollary of the immunities. In other words,
diplomatic rights and duties are seen as corresponding notions.3 This is correct in
the sense that the VCDR adheres to a certain balance between rights and duties
of receiving and sending States, which enables the diplomatic system, historically
grounded in the principle of reciprocity, to function. Yet, the system designed by
the VCDR is not truly synallagmatic. Strict adherence to the reciprocity principle
might hinder equal treatment of diplomatic missions, as it would enable States to
discriminate according to immunities and privileges received by their own mis-
sions abroad. Such acts would be irreconcilable with the text of Article 47 VCDR.
Furthermore, the ILC clearly ruled out the idea that a State only has to grant
immunities if a diplomatic agent fulfils his or her duties. In its 1958 Commentary
to the Draft Articles on Diplomatic Intercourse and Immunities, the ILC submit-
ted that ‘[f ]‌ailure by a diplomatic agent to fulfil his obligations does not absolve
the receiving State from its duty to respect the agent’s immunity’.4

2  The VCDR contains a large number of rules on immunities, inviolabilities, and privileges, as well
as, for example, a duty to treat diplomats with ‘due respect’ (Art 29 VCDR). The VCDR even imposes
obligations on third States so as to allow diplomats to perform their functions (Art 40 VCDR). See for
further reading Parts III and IV in this volume, which study the rights of diplomats.
3  Ivor Roberts (ed), Satow’s Diplomatic Practice (6th edn, OUP, Oxford 2011) 150; Silviya Lechner,
‘What Difference Does Ius Inter Gentes Make? Changing Diplomatic Rights and Duties and the
Modern European States-​System’ (2006) 1 The Hague Journal of Diplomacy 235–​59, 240–​41.
4  ‘Draft Articles on Diplomatic Intercourse and Immunities with Commentaries’, ILC Yearbook
1958 vol II, 104. The same idea was confirmed in the commentary (104) of the article on the use of
 249

The Obligations of Diplomats as Conceived in the VCDR 249

In contrast to the many obligations of receiving States, the Convention offers

less detailed guidance with regard to the duties of individual diplomats and of
sending States. Two rather general articles of the VCDR are devoted to the diplo-
matic duties: Article 41 VCDR consists of three paragraphs and four obligations;
Article 42 adds a fifth duty. The concise wording of the Treaty is contrasted with a
substantive practice and, as will be shown in the following section, the Convention
treats duties in less expressive terms all the way through.5

2.1 Individual obligations of diplomats

2.1.1 The obligation to respect the laws and regulations of the receiving State
One can find the first set of obligations of diplomats in Article 41(1) VCDR. The
provision contains two distinct, stand-​alone duties, discussed in this subsection
and the next one (2.1.2). The first sentence of Article 41(1) VCDR spells out
that diplomats have to abide by local laws and regulations. By its very nature, this
provision serves as the most direct counterpart for the special ‘protection’ status
of diplomats in the receiving State. The VCDR’s wording, however, is somewhat
misleading where it refers to ‘persons enjoying privileges and immunities’. A clear
distinction must be drawn between these concepts. In the case of privileges, cer-
tain laws and regulations simply do not apply. Thus, as far as privileges such as
the exemption of taxes are concerned, Article 41(1), first sentence, is without an
object. In contrast, the provision is all the more meaningful in cases where certain
laws and regulations cannot be enforced, for example, in the case of immunities
and inviolabilities enjoyed. Here, the special status of diplomatic agents entails
that they must comply with applicable laws and that they are exempt from the
underlying substantive liability. A diplomatic agent is not immune from the juris-
diction of his or her sending State (Article 31(4)) or any third State that can law-
fully establish jurisdiction. The sending State can also decide to waive diplomatic
immunity of the diplomat in the receiving State (Article 32). As such, the system
has created extra incentives for persons enjoying immunity to respect local laws
and regulations. It also puts into question the theory of diplomatic obligations as
the corollary of the rights enjoyed, since the latter are largely procedural in nature.6
Article 41(1), first sentence, is commonly understood as the duty for diplomats
to adhere to the rules of the receiving State. The obligation to respect local regula-
tions applies to official as well as private activities.7 Obligations can stem from
contract law (eg the payment of rent or debts owed to providers of services), labour
law (eg the duties of a diplomat as a responsible employer), penal law (eg the duty
to respect the physical integrity of others), human rights law, or—​an area of great
concern worldwide—​traffic laws and regulations: most receiving States explicitly

the premises of the mission: ‘[f ]‌ailure to fulfil the duty laid down in this article does not render article
20 (inviolability of the mission premises) inoperative […]’.
5  Charles Chatterjee, International Law and Diplomacy (Routledge, New York 2007) 183.
6  See Denza (n 1) 257 and 374. 7  Roberts (n 3) 151.
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250 Legal Duties of Diplomats Today

request diplomats to abide by traffic regulations upon arrival and remind them
of this regularly.8 In addition to these substantive obligations, Article 41(1) also
contains an implied obligation for diplomats to be knowledgeable about the local
laws and regulations.
The duty to respect local laws is referred to in a number of other VCDR provi-
sions. First, pursuant to Article 26 and notwithstanding the freedom of movement
and travel of the members of the mission, the receiving State can proclaim restric-
tions concerning personal, or official visits to zones entry into which is prohib-
ited for reasons of national security. This may concern areas of the territory that
are subject to special regulations by definition, such as military zones or nuclear
plants.9 An example of a more questionable use was provided in 2010, when the
Central African Republic imposed the immediate requirement for notification of
its Ministry of Foreign Affairs (MFA) prior to any travel by members of the diplo-
matic corps to areas ‘under tension’, without specifying what areas were considered
off limits.10 A similar restriction was adopted by the Syrian government in 2006.
Diplomats were required to request permission for all travel outside of Damascus
and ‘even for travel to outlying suburbs such as Saboura, where many diplomats
live’.11 Second, Article 36 VCDR contains a similar reference to the duty to abide
by local legislation, covering the guaranteed entry in the territory of goods for
official or personal use. The article enables receiving States to prohibit the import
of drugs, weapons, and other objects which would pose a substantial threat to
the public order. However, what is less well known is that it also permits States to
adopt administrative regulations allowing the import of certain goods within the
limits of quotas.12 These restrictions usually target  alcoholic beverages, tobacco
products, and fuel for vehicles. In Switzerland, alcoholic beverages and tobacco
products may be brought into the country free of import duties by diplomatic

8 See, for example, the French directives <http://​www.diplomatie.gouv.fr/​en/​the-​ministry-​of-​

foreign-​affairs-​158/​protocol/​immunities/​article/​respect-​for-​local-​laws-​and> accessed 23 August 2014.
In the Belgian practice, the Protocol Directorate of the Federal Public Service Foreign Affairs reminds
members of diplomatic missions of their obligation to respect Belgian road traffic laws and regula-
tions in the Circular Note of 18 March 2014 (‘Respect for traffic rules and regulations’) and in that
of 5 March 2014 (‘Registration of diplomatic vehicles’). The Norwegian Government asks members
of missions to pay particular attention to Norwegian legislation concerning speed limits, alcohol,
and driving and parking regulations: Norwegian Ministry of Foreign Affairs, ‘Diplomat in Norway’,
<http://​ w ww.regjeringen.no/ ​ n b/ ​ d ep/ ​ u d/ ​ d ep/ ​ f orbindelser/​ d iplomat_​ n oway.html?id=666838>
accessed 23 August 2014.
9 Frédéric Dopagne, Sanderijn Duquet, and Bertold Theeuwes, Diplomatiek recht toegepast in
België (Maklu, Antwerp 2014) 146.
10 WikiLeaks, ‘MFA Note seeks to regulate travel by diplomats in the CAR’ (21 April 2009,
Cable 09BANGUI86_​ a) <https://​wikileaks.org/​plusd/​cables/​09BANGUI86_​a.html> accessed 27
August 2014.
11 WikiLeaks, ‘Chargé Raises SARG Travel Restrictions With MFA’ (26 April 2007, Cable
07DAMASCUS401_​a) <https://​wikileaks.org/​plusd/​cables/​07DAMASCUS401_​a.html> accessed
27 August 2014.
12  The obligation even allows agents of a receiving State to inspect the personal baggage of a dip-
lomatic agent in his or her presence when there are serious grounds for presuming that it contains
articles that violate such local rules (Art 36(2) VCDR). Such inspection cannot be conducted in the
case of a diplomatic bag (Art 27(3) VCDR).
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The Obligations of Diplomats as Conceived in the VCDR 251

missions in those quantities that are ‘required for official purposes’. The term ‘offi-
cial purposes’ covers acts in the performance of various diplomatic functions as well
as small-​scale cocktail parties organized by the mission.13 States determine quotas
on the basis of reciprocity or make their purchase subject to a prior authorization
by local authorities.14 Third, on other occasions, the Vienna Convention is more
subtle in formulating that local laws and regulations apply. For example, when dip-
lomatic agents perform consular functions, permissible under the terms of Article
3(2) of the VCDR, it is implied that they have to respect local laws while doing
so.15 Diplomats, for example, cannot perform marriages in the embassy’s premises
unless it is permitted under local law.16 Practice varies around the globe: Filipinos,
for example, can get married in their country’s embassy in Qatar, and, recently, the
first gay couple were married at the British Embassy in Vietnam. Other diplomatic
representations (eg that of the Netherlands to the Philippines and the American
mission to Japan) note on their websites that citizens cannot get married at the
embassy. Belgium, in its practice as a sending State, recently revoked this compe-
tence altogether.17
Violations of Article 41(1) VCDR have been a source of resentment for local
governments since the early days of the VCDR. In more recent years, the annoy-
ance has become much more ‘common’, as citizens have become more vocal in
expressing their disapproval of the behaviour of certain diplomats in their home
towns. The topic also serves as a popular item in the media. In the Netherlands, a
TV show featured short items in which a reporter confronted diplomats with their
obligations as responsible road users in The Hague.18 When the reporter, in one of
his quests, was physically assaulted by an employee of the Angolan Embassy, the
Ministry of Foreign Affairs felt compelled to invite the Ambassador to discuss the

13  The exemption also applies to large-​scale official receptions (the example is given of a reception
in connection to the World Economic Forum in Davos), provided that the politicians of the receiv-
ing country in its capacity as the host country are invited to it. See Ordinance relating to customs
privileges for diplomatic missions in Bern and consular posts in Switzerland of 23 August 1989, SR
631.144.0; and the Swiss Manual for Embassies and Consulates, ‘Importation of alcoholic bever-
ages, tobacco products and foodstuffs’ (Eidgenössisches Departement für auswärtige Angelegenheit,
Bern 2011).
14 See eg the reciprocal arrangements between Belgium, the Netherlands, and Luxembourg,
Ministerial Decree of 17 February 1960, Belgian State Gazette 18 February 1960.
15  Article 3 of the VCCR spells out that ‘[consular functions are] exercised by diplomatic missions
in accordance with the provisions of the present Convention’. Article 5 VCCR subjects the perform-
ance of a number of consular functions to the laws and regulations of the receiving State; Roberts
(n 3) 151.
16  ‘An Average of Eight Civil Marriages a Week at Philippine Embassy’ Gulf Times (Qatar, 18 May
2013) <http://​www.gulf-​times.com/​qatar/​178/​details/​353009/​an-​average-​of-​eight-​civil-​marriages-​a-​week-​
at-​philippine-​embassy>; British Embassy Hanoi, ‘The British Embassy Celebrates its First Same Sex
Marriage in Vietnam’ <https://​www.gov.uk/​government/​world-​location-​news/​the-​british-​embassy-​
celebrates-​its-​first-​same-​sex-​marriage-​in-​vietnam> both accessed 19 August 2014.
17  See Chapter 4 of Belgium’s new Consular Code, Law of 21 December 2013, Belgian State Gazette
30 April 2014, entry into force 15 June 2014, deleting arts 165(2) and 170bis of the Civil Code.
18  ‘PowNews’ is a TV-​show broadcasted on NPO 3, operated by a Dutch public broadcasting
organization. The short pieces called diplomatenjacht (‘hunting for diplomats’) were a recurring item
in 2013 and 2014.
25

252 Legal Duties of Diplomats Today

incident.19 Moreover, the Dutch government shortly thereafter released a state-
ment that it would ‘avail itself of every opportunity to deal with foreign diplo-
mats who commit acts of serious misconduct while in the Netherlands’ and that
it would ‘more frequently ask for diplomatic immunity to be waived’.20 This is
remarkable, since the Netherlands, similar to most countries, has a tradition of
Members of Parliament questioning the Minister of Foreign Affairs on the ill-​
behaviour of diplomats at regular times on behalf of the citizens.21 The role which
citizens can play in this, either directly or via the media, is new and it can at first
sight add extra dynamics of accountability to the diplomatic system.

2.1.2 The obligation to not interfere in the internal affairs of the

receiving State
The second obligation under Article 41(1) serves a more political purpose. The
last sentence of the provision speaks of the duty for persons enjoying immuni-
ties to not ‘interfere in the internal affairs’ of the receiving State.22 An example
provided in the 1958 ILC Commentary is the prohibition to take part in political
campaigns.23 Instances of direct meddling in political campaigns are rare, although
infractions have been reported in recent years. States, rightfully so, do not appre-
ciate that ambassadors take sides in, or speak at, pre-​election rallies.24 However,
diplomatic cables obtained by WikiLeaks indicate that these practices still occur.
Prior to the 2006 Peruvian presidential election, for example, the US Ambassador
met with opposition leader Castaneda to discuss appropriate strategies for dealing
with the other candidate and later President Humala. A leaked cable noted that
Castaneda’s views on Humala’s popularity, and ‘on the ways to undermine it, are
worth paying attention to’.25 A 2009 cable, moreover, reveals that the US Embassy
in Venezuela donated $10 million to opposition parties and NGOs to counter

19 L Klompenhouwer, ‘Politie onderzoekt mishandeling verslaggever door diplomaten’ NRC

Handelsblad (Rotterdam, 20 November 2013) <http://​www.nrc.nl/​nieuws/​2013/​11/​20/​politie-​onderzoekt-​
mishandeling-​powned-​verslaggever/​> accessed 19 August 2014.
20 Ministry of Foreign Affairs, ‘Netherlands to Seek More Frequent Waiver of Diplomatic
Immunity’ <http://​www.government.nl/​news/​2014/​04/​23/​netherlands-​to-​seek-​more-​frequent-​waiver-​of-​
diplomatic-​immunity.html> accessed 19 August 2014.
21  See eg Parliamentary Question 2009Z07389, 20 April 2009 (NL), on the non-​payment of
parking tickets by diplomats. In Belgium, the Minister of Foreign Affairs recently communicated a
list of the missions that most often receive parking tickets, and of the missions that most often fail
to pay these tickets in his response to the written parliamentary question no 5-​9872, 18 September
2013 (BE).
22 See for an extensive discussion:  Paul Behrens, Diplomatic Interference and the Law (Hart
Publishing, Oxford 2016).
23  ILC (n 4) 104.
24  See eg a speech by the Russian Ambassador to Serbia who praised the nationalist Serb Progressive
Party (SNS) at the party’s rally in Belgrade on 29 October 2011, as reported by WikiLeaks <https://​
wikileaks.org/​gifiles/​docs/​16/​167072_​-​os-​russia-​serbia-​gv-​russian-​diplomat-​criticized-​for-​speech.
html> accessed 17 August 2014.
25 WikiLeaks, ‘Lima Mayor Luis Castaneda on Ollanta Humala’ (13 January 2013, Cable
06LIMA158_​a) <https://​wikileaks.org/​plusd/​cables/​06LIMA158_​a.html> accessed 1 November 2016.
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The Obligations of Diplomats as Conceived in the VCDR 253

the Chavez Government.26 It is also doubtful whether an ambassador can make

statements after elections, for example, to congratulate the winner. In the wake of
elections, it is advisable that missions only release neutral statements, for example,
to congratulate the people of the sending State on holding a peaceful election or to
have the sending State’s government rather than the ambassador convey a message
of congratulations.27 It is also commonly accepted that an embassy can deliver a
message of congratulations on behalf of its Head of State or government.28 States
that consider diplomats who sit together with, or openly support, opposition lead-
ers (outside of election periods) in violation of Article 41(1) are a different case.29
In February 2014, the government of Venezuela announced that it had expelled
the US Embassy’s Chargé d’Affaires and two consular agents for inciting anti-​gov-
ernment protests.30 The diplomats were declared persona non grata after releasing
statements approving of protests in Caracas against President Maduro.31 This inci-
dent followed a similar expulsion in 2013 of US diplomats accused of meeting
with opposition leaders and encouraging ‘acts of sabotage’ against Venezuela.32
The above examples reveal a certain tension between Article 41 and Article
27(1) of the Vienna Convention. The latter article obliges host States to permit
and protect free communication through appropriate means for official purposes
on the part of the missions on its territory. The one exception to this rule for the
mission is the instalment and use of a wireless transmitter, for which the consent
of the receiving State is required. In the Australian practice, such permissions are
also required for the installation of satellite receiving dishes on the premises of
the mission and are made subject to reciprocal approval in the country making
the request, while, in Sweden, certain radio transmitters are explicitly exempted
from the license obligation.33 It is not disputed that missions can, in principle,

26  ibid, and WikiLeaks, ‘Request for Additional Funds to Help Strengthen Local Governments
and Civil Society Groups’ (27 March 2007, Cable 09CARACAS404_​a) <https://​wikileaks.org/​plusd/​
cables/​09CARACAS404_​a.html> accessed 20 August 2014.
27  See eg the joint statement of the embassies of the US, UK, and the Netherlands to congratulate
the local government on a well-​administered election day in Georgia on 15 June 2014 <http://​georgia.
usembassy.gov/​news-​events/​emb_​news2014t/​16062014js.html> accessed 18 August 2014.
28  See eg the congratulatory message of the Chinese Prime Minister on the assumption of office of
the Prime Minister of India, posted on the website of the Embassy of the People’s Republic of China
in India on 27 May 2014, <http://​in.chineseembassy.org/​eng/​embassy_​news/​t1159881.htm>; or the
message on the website of the Embassy of Vietnam in Washington DC, in which the Vietnamese
President and Prime Minister on 7 November 2012 congratulated Barack Obama on his re-​election
as President of the US, <http://​vietnamembassy-​usa.org/​news/​2012/​11/​congratulations-​president-​
obama>, both accessed 18 August 2014.
29  Roberts (n 3) 153.
30  The chargé d’affaires was the most senior US diplomat in Caracas at the time; the US and
Venezuela have not appointed Ambassadors in each other’s capitals since 2010.
31  G Gupta and B Ellsworth, ‘Venezuela Expels Three US Diplomats, Protests Rumble’ Reuters
(Caracas 17 February 2014).
32  B Ellsworth and E Chinea, ‘Yankees Go Home!: Venezuelan President to Expel Top US Diplomat’
Reuters (Caracas 1 October 2013).
33  Australian Department of Foreign Affairs and Trade, ‘Protocol Guidelines’, §5.4.2-​3, <http://​
dfat.gov.au/​about-​us/​publications/​corporate/​protocol-​guidelines/​Pages/​protocol-​guidelines.aspx>;
and the Swedish Protocol Department of the Ministry of Foreign Affairs, ‘Diplomatic Guide’, §19.6
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254 Legal Duties of Diplomats Today

communicate freely with the sending State’s government,34 other missions and
consulates, international organizations, and the sending State’s nationals located
in the receiving State’s territory. The wording of the VCDR is also favourable in
this regard: the protection of ‘the interests of the sending State and of its nationals,
within the limits permitted by international law’ constitutes a function of a dip-
lomatic mission (Article 3(1)(b) VCDR). The safeguarding of such interests often
requires the consultation of nationals, including corporations investing in the for-
eign State.35 In the 1958 ILC Commentary, it was explicitly accepted that ‘[t]‌he
making of representations for the purpose of protecting the interests of the diplo-
matic agent’s country or of its nationals in accordance with international law does
not constitute an interference in the internal affairs of the receiving State within
the meaning of this provision’.36 It is unclear whether the protection of the inter-
ests of the sending State would go as far as allowing a diplomat to criticize the trial
in the receiving State’s court of law of local staff employed by the sending State’s
government. An example was nevertheless provided in January 2006 by a US dip-
lomat in Ethiopia who described the decision by Ethiopian government authorities
to try 129 opposition leaders, journalists, and local aid workers on charges includ-
ing treason and genocide as ‘divisive’.37 On the other hand, criticizing a third State,
which is strictly speaking not an interference in the ‘internal’ affairs of the receiving
State, is not allowed if it would jeopardize the relations between the latter and the
former.38
As was observed earlier, the maintenance of lines of communication with oppos-
ition groups, NGOs, and citizens of the receiving State tends to be more ambigu-
ous. Although States generally allow foreign diplomatic agents to interact with
Members of Parliament and representatives from business, academia, civil soci-
ety organizations, arts, and so on, this is not the case everywhere. One of the
reasons is that such meetings are a convenient way to exercise influence locally
without having to interact directly with government bodies.39 In addition, there

<http://​www.government.se/​government-​of-​sweden/​ministry-​for-​foreign-​affairs/​diplomatic-​portal/​
diplomatic-​guide> both accessed 15 October 2015.
34  But see the restrictions, stemming from Article 41(2) VCDR, as to how the mission is supposed
to conduct business (discussed in section 2.2).
35  Paul Behrens, ‘Diplomatic Interference and Competing Interests in International Law’ (2012)
82 British Yearbook of International Law 178–​274, 195.
36  ILC (n 4) 104.
37  A Al-​Hilweh, ‘Trial of Opposition Activists’ Irin News (Addis Ababa, 5 January 2006) <http://​
www.irinnews.org/​report/​57721/​ethiopia-​trial-​of-​opposition-​activists-​divisive-​us-​diplomat> accessed
18 August 2014.
38 According to Richtsteig, such statements are not permitted ‘soweit sie geeignet sind, die
politischen Beziehungen des Empfangsstaat zu einem dritten Staat zu belasten, und soweit sie
die Grenzen der legitimen Wahrnehmung eigener Interessen überschreiten’; Michael Richtsteig,
Wiener Übereinkommen über diplomatische und konsularische Beziehungen:  Entstehungsgeschichte,
Kommentierung, Praxis (2nd edn, Nomos, Baden-​Baden 2010) 102.
39  See eg a 2006 e-​mail of the Chargé d’Affaires of the US Embassy in Damascus: ‘we are also
attempting to reach to Syria’s wider civil society. This wider civil society in Syria may provide a signifi-
cant opportunity for US influence but equally presents some of the greatest challenges’; WikiLeaks,
‘Reaching Out to Syrian Civil Society’ (21 December 2006, Cable 06DAMASCUS5422_​a) <https://​
wikileaks.org/​plusd/​cables/​06DAMASCUS5422_​a.html> accessed 27 August 2008.
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The Obligations of Diplomats as Conceived in the VCDR 255

exists an increased need to interact with the unorganized part of society.40 The
internet allows for more efficient communication with ‘ordinary’ citizens; setting
up a website is an essential requirement for the diplomatic mission nowadays. The
argument can also be made that such contacts are in the ‘interests of the sending
State’ and are a normal exercise of a diplomat’s functions. Moreover, other diplo-
matic functions benefit from contacts with locals too: learning the views of aca-
demia, civil society, opposition parties, and the like will contribute not only to the
‘promotion of friendly relations’ between the sending State and the receiving State
(and not just their governments), but also to the development of their economic,
cultural, and scientific relations (Article 3(1)(e) VCDR) and to ascertaining ‘con-
ditions and developments’ in the receiving State (Article 3(1)(d) VCDR).41
Quite a number of States consider it improper interference in domestic affairs
when diplomats actively get involved in human rights related issues. Some legal
scholars have expressed doubts as to whether uttering disapproval regarding a
human rights situation is permitted or appropriate in a diplomatic context.42
Increasingly, however, scholars argue that international human rights law requires
diplomats, as agents of their government, to respect, protect, and promote human
rights. Balancing these two views, Behrens argues that the application of general
principles of harmonization offers a way out of the conflict between diplomatic
and human rights law.43 Three arguments are worth mentioning in this context.
First, multilateral human rights treaties and domestic laws contain various types
of extraterritorial jurisdiction clauses.44 Acts or omissions by diplomatic or con-
sular agents may engage the responsibility of the sending State.45 Second, one can
qualify States’ human rights commitments as a matter of ‘legitimate international
interest’ rather than purely a matter of ‘internal’ affairs of the receiving State. This
idea especially holds true when both the sending and receiving State are party to
the same human rights treaty and there is a mutual interest in safeguarding the
protection system set up by it.46 Third, it can be argued that the mission is merely
exercising its functions as understood in Article 3 VCDR while it is protecting the

40 See eg the statement made by then US Secretary of State Hillary Clinton in R Stengel,
‘Q&A:  Hillary Clinton on Libya, China, the Middle East and Barack Obama’ Time Magazine
(New  York 27 October 2011). See for further reading from a political science perspective, Jozef
Bátora, Foreign Ministries and the Information Revolution: Going Virtual? (Martinus Nijhoff Publishers,
Leiden and Boston 2008) in particular 29–​32.
41  For further reading, see Behrens (n 35) 220, who submits that the ‘five traditional functions
provide a strong method of countering accusations of meddling. In this regard, diplomats will often
be able to invoke not only the text of the VCDR, but its application in State practice as well’.
42  Jean Salmon, Manuel de Droit Diplomatique (Bruylant, Brussels 1994) 129. See for a discussion
Richtsteig (n 38) 103; Behrens (n 35) 202.
43  Paul Behrens, ‘None of Their Business?: Diplomatic Involvement in Human Rights’ (2014) 15
Melbourne Journal of International Law 190–​227.
44  See for an extensive discussion, Marko Milanovic, Extraterritorial Application of Human Rights
Treaties: Law, Principles, and Policy (OUP, Oxford 2013).
45  This is the view taken by the European Court of Human Rights in Banković and Others v
Belgium and Others (App No 52207/​99) ECHR 19 December 2001, §73; and, more recently, in Hirsi
Jamaa and Others v Italy (App No 27765/​09) ECHR 23 February 2012, §75.
46  Roberts (n 3) 153.
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256 Legal Duties of Diplomats Today

sending State’s interests. In the light of these findings, modern theory often accepts
that diplomatic missions can disclose (gross) violations of human rights in the
receiving State.47 However, as Behrens argues, there is no evidence that receiving
States accept diplomatic allegations of grave human rights violations as exceptions
to the rule against interference.48
Despite the legal and scholarly support, continuous and open criticism of a
receiving State (and its human rights track record) will often work counterproduc-
tively for diplomats.49 In the first instance it remains—​both from a legal as well
as pragmatic point of view—​most effective to employ ‘normal’ diplomatic means
to draw the government’s attention to a certain matter. Disclosing situations to
the public at large, for example through a public statement or by supporting cer-
tain causes, still should be considered as a means of last resort when negotiations
with the receiving State have failed. Other ways of reporting abusive practices in
the host States have also been sought and found. A particular example is that of
the Dutch Embassy in Zimbabwe. The mission uses the Embassy’s cat to keep
Dutch citizens informed about current events in the country.50 Since 2012, the cat
eavesdrops on embassy personnel when they deliberate with ‘politicians, artists and
other interesting figures’. He writes weekly short opinion pieces on the mission’s
Facebook page with a cheerful tone, yet between the lines is quite critical on the
government’s (human rights) policy and the behaviour of government officials.51
The Embassy insists that the pieces should not be seen as its official opinion, but
as that of a ‘strange, superstitious cat that reports what it has heard in the corri-
dors’.52 While this initiative deserves credit for its inventiveness and commitment
to inform citizens, one may wonder whether the mission’s official Facebook page is
the appropriate place to do so.

2.1.3 The obligation to abstain from professional and commercial activities

According to Article 42 VCDR, diplomats cannot practice professional or com-
mercial activities for personal profit in the host State. Unlike the obligations

47 Denza (n 1)  377. International Law Institute, ‘The Protection of Human Rights and the
Principle of Non-​Intervention in Internal Affairs of States’ (1989) 63 Institut de Droit International
Annuaire 338, Article 3.
48  Behrens (n 43) 197.
49 After issuing comments (perceived as critical) of the Czech President’s decision to attend a
Second World War commemoration in Moscow in the midst of the Ukraine crisis in April 2015, the
US Ambassador to the Czech Republic was informed by the receiving country that the door of Prague
Castle ‘was closed’ to him; M Kahn, ‘Czech PM Criticizes Country’s President after US Diplomatic
Spat’ Reuters (Prague 6 April 2015).
50 The Embassy Cat, Professor Lovemore Shumba, ‘cat-​municates’ through <https://​www.face-
book.com/​DutchEmbassyZimbabwe> accessed 18 August 2014.
51  The cat has, among others, commented on President Mugabe’s expensive trips abroad, racist
statements by one of the President’s adjutants, ‘catrights’, and the handling of ‘pussy riots’ by local
police forces.
52  See J Roerig, ‘Ambassade zet poes inop Facebook’ De Telegraaf (Amsterdam, 18 October 2012)
<http://​www.telegraaf.nl/​buitenland/​20948538/​_​_​Ambassade_​zet_​poes_​in_​op_​Facebook_​_​.html>
accessed 18 August 2014.
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The Obligations of Diplomats as Conceived in the VCDR 257

discussed above, Article 42 addresses the diplomatic agent rather than ‘all persons
enjoying privileges and immunities’. Consequently, family members of the agent
remain free to perform professional and commercial activities for the purposes of
personal gain in the receiving State.53 Family members who wish to engage in prof-
itable activities will most likely be obliged by the receiving State to follow admin-
istrative processes (eg to obtain a work permit) as set out in local laws or bilateral
agreements.54 Such an obligation stems directly from Article 41(1) VCDR on the
respect for domestic regulations (eg labour law, tax regimes, and social security
provisions of the host State).55 In addition, family members are subject to obliga-
tions as imposed on receiving States by, for example, the European Union or other
(regional) international organizations, on labour standards or qualifications for
certain professions.56
Legal discussions on the application of Article 42 often revolve around the ques-
tion whether a particular activity of a diplomatic agent classifies as a ‘professional
or commercial activity’ as understood in the VCDR.57 Traditionally, not all prof-
itable activities seemed to be excluded a priori. At the 1961 Vienna Conference it
was submitted that ‘[t]‌he proposed provision was not meant to debar diplomats
from the exercise of literary or artistic activities or to prevent a diplomatic agent
from acting as counsel in proceedings before the International Court of Justice’.58
This idea has been translated into the national practice of some receiving States.
Swiss law, for example, contains a provision that spells out that teaching activities
on specialized subjects may constitute an acceptable side activity for which permis-
sion can be obtained by a diplomat.59 However, over the years, it has become more
difficult to draw the line. The discussion is particularly relevant in the context
of Article 31(1)(c) VCDR, which excludes immunity from civil and administra-
tive jurisdiction for professional or commercial activity carried out by a diplomat.
In the context of this provision, the discomfort of immunity only arises in cases

53  Denza (n 1) 324; Salmon (n 42) 386.

54  Bilateral agreements used by European States are based upon the model agreement recommended
in this regard by the Committee of Ministers of the Council of Europe, Annex to Recommendation
R (87) 2 of 12 February 1987.
55  See eg the French Ministry of Foreign Affairs’ instruction that ‘dependants authorized to engage
in paid employment in France are liable to tax, as residents are, as provided under general law’,
<http://​www.diplomatie.gouv.fr/​en/​the-​ministry-​of-​foreign-​affairs-​158/​protocol/​privileges/​article/​
exemption-​from-​taxation> accessed 23 August 2014.
56  See Directive 2005/​36/​EC of 7 September 2005 on the recognition of professional qualifica-
tions, as amended by Directive 2013/​55/​EU of 20 November 2013 OJ [2013] L354/​132.
57  Even at the 1961 Vienna Conference, there was no agreed definition of the meaning of ‘com-
mercial activity’: see the remarks of the American delegate, Mr Cameron, in ‘Official Records of the
UN Conference on Diplomatic Intercourse and Immunities’ (Vienna, 2 March-​14 April 1961) UN
Doc A Conf 20/​14, 21.
58  UN Conference on Diplomatic Intercourse and Immunities (n 57) 212. This idea has been
translated into the national practice of some receiving States. See eg the rule in Swiss law that teaching
activities on specialized subjects may constitute an acceptable side activity for which permission can
be obtained.
59  Art 21(3) Ordinance to the Federal Act on the Privileges, Immunities and Facilities and the
Financial Subsidies granted by Switzerland as a Host State of 7 December 2007, 192.121 (last revised
15 July 2013).
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258 Legal Duties of Diplomats Today

of continuous commercial activity rather than single acts of commerce by diplo-
mats.60 This was confirmed in a recent American court case examining the term
‘commercial activity’ as used in the VCDR. According to the Court, the term does
not have so broad a meaning as to include occasional service contracts, but ‘relates
only to trade or business activity engaged in for personal profit’.61
It is less clear whether fundraisers or charity events classify as commercial activi-
ties. The US Government, in its practice as a sending State, prohibited American
ambassadors from participating in the so-​called ‘ice-​bucket challenge’ to raise
money for amyotrophic lateral sclerosis (ALS).62 An internal memo sent to diplo-
matic missions explained that ‘concerns about preference and favouritism always
arise’ when ambassadors participate in charitable fundraising. The memo further
reiterated that ‘there are firmly established rules preventing the use of public office,
such as our ambassadors, for private gain, no matter how worthy a cause’. This
view stands out, given the Vienna Convention’s travaux préparatoires and the views
adopted by other States. Nevertheless, a principled approach has the advantage of
eliminating at least some of the ambiguities surrounding the concept of ‘personal
profit’.
Finally, Article 42’s wording, which targets the diplomat and not the sending
State, does not bar the diplomat from carrying out tasks for the profit of that State.
Such acts may trigger immunity from the civil and administrative jurisdiction of the
diplomat as well as immunity of the State. The two regimes, however, should not be
confused. State immunity is far more restricted and distinguishes acts of a govern-
mental or public nature (jure imperii) and non-​sovereign acts (jure gestionis) falling
outside the scope of immunity from jurisdiction. It transpires from the Vienna
Convention, in particular from Article 31(1) VCDR, that this distinction is not
relevant to the case of immunity of the diplomatic agent. The diplomat’s immunity
from civil jurisdiction applies to legal proceedings which are based upon official acts,
but also to legal action which concerns the agent’s private sphere. Immunity from
civil jurisdiction is subject only to exceptions exhaustively listed in Article 31(1)
VCDR.63 However, according to the same provision, these exceptions do not apply
where the activity in question has been carried out on behalf of the sending State.

2.2 Obligations relating to how the mission conducts official

business
The Convention sets out a fourth obligation, targeted at diplomatic missions in
general. Under Article 41(2) of the VCDR, official business between a mission

60  See Denza (n 1) 251, who refers to the drafting process of the VCDR.
61  Sabbithi v Al Saleh, 605 F. Supp. 2d 122 (DDC 2009); Gonzales Paredes v Vila, 479 F. Supp.2d
187, (DDC 2007).
62  M Lee, ‘US Diplomats Barred from Ice Bucket Challenge’ Associated Press (New York City, 21
August 2014) <http://​bigstory.ap.org/​article/​us-​diplomats-​barred-​ice-​bucket-​challenge> accessed 23
August 2014.
63  Grant V McClanahan, Diplomatic Immunity: Principles, Practices, Problems (Palgrave Macmillan,
New York 1989) 130.
 259

The Obligations of Diplomats as Conceived in the VCDR 259

and a receiving State’s government has to be conducted with or through that

State’s Ministry of Foreign Affairs ‘or such other ministry as may be agreed’. This
requirement concerns the manner in which the diplomatic function is carried out,
making it procedural rather than substantive in nature.64 The obligation grants
a monopoly for conducting business to the receiving State’s MFA. The Vienna
Convention does not exclude the possibility that diplomatic missions reach out to
other government actors, but makes such contacts dependent on prior agreement,
whether express or implied.65 The underlying rationale of this rule is that it enables
a sending State’s government to control all contacts a diplomatic mission may have
with its civil servants.66 It is noted in scholarship that this principle has always
been qualified: the mission can have direct contact with other ministries, agencies,
or administrations.67 This view finds support in the 1958 ILC Commentary which
allowed specialist attachés to deal with other authorities directly.68 The need has
only increased since. Three modern developments have contributed to a less rigid
reading of Article 41(2) VCDR: the higher degree of specialization of missions, the
decentralization processes in receiving States, and the growing interconnectedness
of diplomatic and consular tasks.
First, throughout the years, Ministries of Foreign Affairs have become increas-
ingly aware of the need to organize their missions abroad in the most efficient way
possible. The demands of the modern diplomatic practice justify a higher degree
of professionalism and specialization within diplomatic missions. The internal
structure of modern diplomatic missions reflects this idea. In the past embas-
sies were portrayed as ‘one entity’. In today’s practice, the organizational chart of
medium-​or large-​scale missions is more sophisticated. Under the authority of an
ambassador, multiple departments are operational that observe police and justice
tasks, economic affairs, and cultural and social affairs.69 The specialists working in
embassies, moreover, may be seconded by ministries other than the Ministry of
Foreign Affairs. It is recognized that the technical sections of the mission interact
with the services addressing their specific function.70 One may think in that regard
of intelligence security specialists being housed in embassies sent by the sending
State who are in direct contact with the receiving States’ Ministries of Defence and
Justice.
Second, receiving States’ internal structures have become more complicated
than had been the case in the early 1960s. A considerable number of nations have
federal or semi-​federal structures, or have transferred competences to local lev-
els. As a result, important law-​and policy-​making powers have been conveyed
to constituent parts of States—​sometimes even including the power to conduct
external policies and conclude treaties. Diplomatic missions accredited in those

64  Roberts (n 3) 153. 65  ILC Commentary (n 4), 104. 66  Roberts (n 3) 153.
67  Richtsteig (n 38) 103; Denza (n 1) 384; Salmon (n 42) 138.
68  ILC Commentary (n 4), 104.
69 See eg Netherlands Embassy and Consulates in China, ‘Organization Chart’ <http://​china.
nlembassy.org/​organization/​organisation-​chart> accessed 17 August 2014.
70  ILC Commentary (n 4) 104; Roberts (n 3) 153.
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260 Legal Duties of Diplomats Today

States have a legitimate interest to maintain contacts at local or regional levels.
A  narrow reading of Article 41(2) VCDR, in the sense that it would enable a
receiving State’s MFA to prohibit a diplomatic mission to carry out business with
regional entities, would be difficult to reconcile with the purpose and objectives of
the diplomatic system. Yet in contrast to the widely accepted practices of missions
dealing with other ministries at the federal level, receiving States may be less com-
fortable with direct interactions of missions with sub-​State entities. As such, it may
be the case that the MFA still requires prior agreement, according to the letter of
Article 41(2). The German Federal Foreign Office has clarified by a circular note
addressed to foreign missions that for all matters of ‘grundsätzlicher Bedeutung’
(‘of fundamental significance’) they should not correspond directly with ‘Landes-​
oder Kommunalbehörden’ (‘regional or local authorities’).71 At first sight, a different
view is held in Belgian practice. Foreign missions are allowed and even ‘encour-
aged’ to have direct contact with the communities and regions.72 Nevertheless,
here too we observe that the federal Ministry of Foreign Affairs deals with certain
topics exclusively. In its guidelines on the topic, Belgium reserves strictly political
matters, requests for official visits to the Prime Minister, and questions concerning
the application of the VCDR to the MFA.73
Third, in practice the growing interconnectedness of politics and economic and
commercial affairs of sending States abroad, and between diplomatic and consular
functions, has also contributed to an increase in the business conducted by dip-
lomatic missions with local authorities. Diplomatic functions are mostly carried
out through interaction with the central government of the receiving State, as
opposed to consular functions, which are performed through contact with local
actors, such as enterprises, police or prison officers, the cultural sector, and so
on.74 However, without denying the important differences between diplomatic
and consular functions, it is fair to say that in modern practice a complete distinc-
tion of these tasks is unfeasible. Both Vienna Conventions foresee the possibility
of consular functions being performed by diplomatic agents.75 As explained, the
legal framework governing the performance of consular functions by diplomats
is the VCCR rather than the VCDR.76 Interestingly, it can be noted that Article
70(3) VCCR expressly permits diplomatic missions to interact with local authori-
ties. It allows missions to address the local authorities of the consular district in the

71  Richtsteig (n 38) 103.

72  See the response of the Belgian Minister of Foreign Affairs to the question of Senator Anciaux,
1995–​1996 Bull Q R Sen no 1–​15, in which he stated: ‘[m]‌ême si, dans les relations internationales,
la règle générale est que les États accréditants ont une connaissance approfondie de l’organisation et
des caractéristiques de l’État accréditaire, l’attention d’un nouvel ambassadeur est toujours attirée sur
la structure fédérale de notre pays et celui-​ci est encouragé à entretenir des contacts avec les autorités
communautaires et régionales’.
73  Salmon (n 42) 138–​39. 74  Roberts (n 3) 79, 249, and 259.
75  See Articles 3(2) VCDR and 3 VCCR.
76  See also Article 70(1) VCCR: ‘[t]‌he provisions of the present Convention apply also, so far as
the context permits, to the exercise of consular functions by a diplomatic mission’. Denza (n 1) 32;
Roberts (n 3) 78–​79.
 261

The Obligations of Diplomats as Conceived in the VCDR 261

exercise of their consular functions. As a result, when a diplomatic agent performs

consular functions, receiving States cannot invoke article 41(2) VCDR to object
to embassies addressing sub-​State entities.
In conclusion, it has been observed that in current practice, Article 41(2) is no
longer interpreted as requiring the explicit prior authorization of the Ministry of
Foreign Affairs each time a diplomatic mission wishes to cooperate with other gov-
ernment actors. The obligation for diplomatic missions under Article 41(2) should
be understood, first, as the duty to always refer topics of the highest importance to
the MFA and, second, to keep this Ministry generally informed about exchanges
with other government actors at the central and local levels.77

2.3 Obligations relating to the use of the premises of the mission

A fifth obligation can be found in Article 41(3) of the Vienna Convention. According
to this provision, the premises of a mission must not be used in any manner incom-
patible with the diplomatic functions of the mission as laid down in the VCDR,
general international law, or special agreements in force between the sending and
the receiving States. The VCDR does not preclude foreign States from acquiring real
property in the host State; rather, it obliges receiving States to facilitate the acquisi-
tion (Art 21(1)). In that sense, the requirement in Brazil for a sending State to solicit
the government’s prior authorization for the purchase of property that it will assign
as its diplomatic mission, and to consult it with regard to the localization of such
premises, is questionable in light of the principles of diplomatic law.78
Article 41(3) indicates that this obligation has to be analysed in the light of
the rules of diplomatic law: to know in what manner diplomatic premises may be
used, one has to study how diplomatic functions are defined in the VCDR, general
international law, and bilateral agreements. It is thus fair to say that this obligation
is also a qualified one. Moreover, the duty is closely related to the obligation in
Article 41(1) to respect the laws and regulations of the receiving State. The refer-
ence in Article 41(3) to diplomatic functions as laid down ‘by other rules of gen-
eral international law or by any special agreements’ was included to cover instances
of diplomatic asylum where it is accepted as a practice between the sending and the
receiving State.79 In case of the absence of such agreements or other arrangements,
offering refuge may be at odds with diplomatic functions, the non-​interference
principle, or with the VCDR’s object and purpose.80

77  Roberts (n 3) 153.

78 Ministry of External Relations, ‘Manual of Rules and Procedures on Privileges and
Immunities: A Practical Guide for the Diplomatic Corps Accredited in Brazil’ (Brasilia, 2010) 72.
79  See Denza (n 1) 385. Diplomatic asylum may be permitted under customary international law
or by virtue of an international agreement.
80  Richtsteig (n 38) 102–​03 notes that the premises may not be used to shelter or detain individu-
als, including the sending State’s own nationals, without the receiving State’s approval. See for an
assessment in the context of the diplomatic missions the European Union operates in third countries,
Sanderijn Duquet and Jan Wouters, ‘Seeking Refuge in EU Delegations Abroad: A Legal Imbroglio
Explored’ (2015) 40 European Law Review 723–​44.
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262 Legal Duties of Diplomats Today

While acknowledging the importance of other international agreements, the
Vienna Convention remains the main source for deducing guidelines for the appro-
priate use of the premises. According to Article 41(3) the definition of ‘diplomatic
functions’ serves a key role in this exercise. The provision is based on the assump-
tion that diplomats know what their functions are and what kind of behaviour is
appropriate.81 While this may have been the case generally in 1961, this assump-
tion has come under pressure in recent years. Legal uncertainties are compounded
by the fact that Article 3 VCDR is not exhaustive.82 In the following paragraphs
we analyse the compatibility of three cases with Article 3 as well as other VCDR
provisions that may offer guidance on the use of diplomatic premises.
A first case concerns the organization of elections on the premises of a mis-
sion. Most States do not oppose to this, but practice seems to require that prior
notification is given.83 Whether this is a matter of diplomatic courtesy or of legal
obligation is open for debate. While the organization of elections is not the core
business of an embassy, it is reconcilable with the diplomatic function to protect,
in the receiving State, the interests of the sending State and of its nationals (Article
3(1)(b) VCDR). In any case, it is clear that by notifying the receiving State the
latter can take the necessary (security) measures and inform local authorities.
Moreover, it also provides the Ministry of Foreign Affairs with the opportunity to
remind the mission of some of its obligations under the Vienna Convention, for
example, its duty not to use these elections to interfere in the internal affairs of the
host State, or, as is the case in Australian practice, to reiterate that ‘local regula-
tions may apply’.84 Some countries have even more detailed guidelines. Belgium,
for example, asks diplomatic missions to ‘refrain from making use of Belgian pub-
lic media in the election campaign or for the elections themselves’ and to ‘take all
possible precautions to avoid demonstrations or rallies around polling stations’.85
Second, it is not disputed that commercial activities cannot be carried out in the
premises since diplomats, as mentioned above, are not allowed to engage in such
activities. Under Article 1(i) VCDR, the ‘premises of the mission’ are ‘the buildings
or parts of buildings and the land ancillary thereto, irrespective of ownership, used
for the purposes of the mission including the residence of the head of the mission’.
The qualification as ‘premises of the mission’ does not depend on a title to property

81  Chatterjee (n 5) 184.

82 See for further reading on the diplomatic functions:  Jan Wouters, Sanderijn Duquet, and
Katrien Meuwissen, ‘The Vienna Conventions on Diplomatic and Consular Relations’ in Andrew F
Cooper, Jorge Heine, and Ramesh Thakur (eds), The Oxford Handbook of Modern Diplomacy (OUP,
Oxford 2013).
83  See eg the Swedish Government’s Note on Elections (34A) <http://​www.government.se/​sb/​d/​
16264/​a/​194554>; the Australian Government’s Protocol Guidelines on Foreign Elections <http://​
www.dfat.gov.au/​protocol/​protocol_​guidelines/​16.html> and the Belgian MFA’s Circular Note of 15
January 2007, ‘Organising of elections on the premises of a diplomatic mission’ <http://​diplomatie.belgium.
be/​en/​binaries/​Elections_​EN_​tcm312-​172683.pdf> all accessed 20 August 2014. The Belgian MFA
requires that it is informed in a timely manner of the exact opening hours of the polling stations and
of the number of people participating in the elections.
84  Australia’s Protocol Guidelines on Foreign Elections (n 83).
85  Belgium’s Circular Note of 15 January 2007 (n 83).
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The Obligations of Diplomats as Conceived in the VCDR 263

but relates to the activities performed on those premises, which have to fall within
the functions of a diplomatic mission in accordance with Article 3 VCDR.86 An
implication is that a diplomat’s family member who is allowed to engage in a pro-
fessional or commercial activity (see the discussion in section 2.1.3) cannot carry
it out in the head of mission’s residence. In some receiving States, practices exist
in which the status of mission premises is temporarily granted to premises other
than those of the mission. The Norwegian Government, for example, occasionally
allows this status to non-​premises ‘to enable the mission to serve alcoholic bever-
ages at for instance a national day reception held at a hotel’, an activity that would
otherwise be subject to licensing by the municipal authorities.87 One condition
that applies is that the purpose of the event cannot be of a commercial nature.88
A related matter is the question as to what extent embassies can organize social
events or sports activities, especially when visitors are asked to contribute finan-
cially. Some argue that the line is drawn when the contribution exceeds the costs
of the event (or, in other words, where there is a profitability goal).89 The United
States Government interprets this provision to mean that ‘mission premises may
not be leased or rented for social events or used for events which are not related
to the conduct of diplomacy’.90 Furthermore, it specified in a 2002 Circular Note
addressed to the corps diplomatique in Washington DC that the use of premises for
a fee to host private events, such as wedding receptions, is not permitted. Several
other receiving States condone certain commercial activities, be it on reciprocal
grounds or as a practice that has evolved in the course of time. In such cases,
however, chances are that in case of tensions in diplomatic relations between
sending and receiving States, the latter notifies the former that it will no longer
accept the practice. It so happened that the US, in the aftermath of a diplomatic
row with India over the arrest of a consular official, was requested by the Indian
Government to close down the American Community Support Association facili-
ties in New Delhi in order to discontinue ‘commercial activities being undertaken
from its embassy premises’.91 At the sports and leisure centre, operated by the

86  Salmon (n 42) 190. According to the European Court of Human Rights ‘[i]‌t is sufficient for the
property to be “used for the purposes of the mission” of the foreign State’. See Manoilescu and Dobrescu
v Romania and Russia (App No 60861/​00) ECHR 3 March 2005, §77.
87  Norwegian MFA (n 8).
88 Other conditions are that the Head of Mission must be present at and hosting the event;
the event is invitation-​only; the owner of the premises must have agreed on the conditions by the
government.
89  Denza (n 1) 384.
90  US Department of State, ‘Circular Diplomatic Note’ (Washington DC, 15 May 2002) <http://​
www.state.gov/​documents/​organization/​32433.pdf> accessed 19 August 2014.
91  R Lakshmi and K De Young, ‘India Targets Expatriates’ Privileges at US Club Amid Dispute
over Diplomat’s Arrest’ The Washington Post (Washington DC, 8 January 2014) <http://​www.wash-
ingtonpost.com/​world/​india-​moves-​to-​end-​expat-​privileges-​at-​us-​club-​sign-​of-​anger-​at-​diplomats-​
arrest-​in-​ny/​2014/​01/​08/​761554d6-​7850-​11e3-​a647-​a19deaf575b3_​story.html>; ‘US Embassy
Asked to Stop Commercial Activities in India’ DNAIndia (New Delhi, 8 January 2014) <http://​
www.dnaindia.com/​india/​report-​devyani-​khobragade-​case-​us-​embassy-​asked-​to-​stop-​commercial-​
activities-​in-​india-​1947193> both accessed 23 August 2014.
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264 Legal Duties of Diplomats Today

mission, yearly memberships had been offered for purchase to non-​members of the
mission—​a practice which the USA would not have allowed as a receiving State—​
to use the swimming pool, gym, and bowling alley, as well as the hairdresser, bar,
and restaurant.
A related issue is the accommodation of fundraisers in support of a charitable
cause. It was explained earlier in the chapter that in the ‘ice bucket saga’ the US
State Department adopted a rather strict view on the matter. Other countries
do not object to it in their practices as sending States. Recently, the Australian
embassy in Amman hosted a fundraiser for a Jordanian NGO assisting Syrian
refugees.92 In view of the argument—​also voiced by the US—​that such activities
provoke concerns about preference and favouritism and that there is essentially an
element of ‘personal profit’ (Article 42 VCDR), it is debatable whether the accom-
modation of fundraisers constitutes a function of a diplomatic mission. Moreover,
in casu, the cause can be perceived as contrary to the duty not to interfere in the
internal affairs of the host State (Article 41(1) VCDR). An online fundraising
event, recently organized by the Embassy of Sierra Leone in Washington DC to
fight the Ebola virus disease, is another fascinating case testing the limits of dip-
lomatic duties by provoking questions on the use of technology and the internet
inside a diplomatic mission in violation of the VCDR.93 This is of relevance, since
online devices may be used not only for commercial activities, but also for far
more serious issues such as the execution of cybercrime or cyberterrorism against
communication facilities in the receiving State.94 Activities carried out via a web-
site, set up or managed from an embassy’s premises, are in principle subject to the
obligations under Article 41(3) VCDR. However, challenges remain for receiving
States in controlling improper use.
A third case of questionable use of diplomatic premises are surveillance activities.
A recent example was provided by Edward Snowden’s 2013 leak of classified NSA
documents revealing that acts of espionage had been conducted from within the
US Embassy in Berlin. From the roof of the mission, a special unit of the CIA and
NSA allegedly monitored telephone communication in Germany’s government
quarter.95 The illegality of acts of espionage under international law is debated.
While general public international law does not outlaw spying by itself, rules on
the unlawfulness of espionage have emerged in special regimes, most prominently
in humanitarian law.96 The Vienna Convention does not expressly deal with secret

92  ‘Australian Embassy Hosts Fundraiser for Syria’ Jordan Times (Amman 5, August 2014) <http://​
jordantimes.com/​australian-​embassy-​hosts-​fundraiser-​for-​syria> accessed 19 August 2014.
93  The embassy sold t-​shirts with the text ‘Join the Embassy: Together We Can Save Lives’ in August
2014, using an online social fundraising platform specialized in selling custom apparel <https://​www.
booster.com/​ebolapandemicreliefsierraleone> accessed 20 August 2014.
94 Won-​Mog Choi, ‘Diplomatic and Consular Law in the Internet Age’ (2006) 10 Singapore
Yearbook of International Law 117–​32, 121.
95  ‘Embassy Espionage: The NSA’s Secret Spy Hub in Berlin’ Der Spiegel (Hamburg, 27 October
2013) <http://​www.spiegel.de/​international/​germany/​cover-​story-​how-​nsa-​spied-​on-​merkel-​cell-​phone-​
from-​berlin-​embassy-​a-​930205.html> accessed 21 August 2014.
96  Simon Chesterman, ‘Secret Intelligence’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia
of Public International Law vol IX (OUP, Oxford 2012) 67.
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The Consequences of a Breach of Diplomatic Obligations 265

intelligence gathering. However, accusations of espionage are relatively common in

diplomatic practice and spying is sometimes invoked as a justification for a persona
non grata declaration.97 Despite the condemnation by most receiving States of the
involvement of diplomats in such activities, it has proven difficult to draw a line
between permitted intelligence gathering and acts prohibited under diplomatic
law.98 The VCDR, on the one hand, considers the ascertaining of conditions in the
receiving State, and the reporting thereon, to be a function of a diplomatic mission
(Article 3(1)(d)). It also is not uncommon for the mission to employ intelligence
experts. One may think in that regard of military attachés, whose names have to
be submitted for approval by the receiving State under Article 7 VCDR. On the
other hand, information acquired through a violation of the law of the host State
cannot be justified under diplomatic law.99 The observation task of diplomats may
only be completed by ‘lawful means’. Such means can be defined in local laws,
for example in espionage acts, by which diplomats have to abide (Article 41(1)
VCDR). Moreover, in the Tehran Hostages judgment, the ICJ referred to espion-
age as an ‘abuse of [diplomatic] functions’.100 In light of the above, it is safe to
conclude—​despite the continued existence of certain practices—​that the Vienna
Convention prohibits intelligence activities in diplomatic premises that have been
qualified as unlawful under national or international law.

3.  The Consequences of a Breach of Diplomatic Obligations

As a general rule, failure by a diplomatic agent to fulfil his obligations ‘does not
absolve the receiving State from its duty to respect the agent’s immunity’.101
Nevertheless, receiving States have to deal with pressures to preserve order in
their territory. They may have good reasons to object to certain acts of diplo-
mats or missions. The following subsections discuss well-​established as well as less
well-​established ways to request diplomats and sending States to observe their
obligations.

97  In the Spring of 2014, Ukraine expelled a Russian military attaché after the latter was caught
receiving classified information on Ukraine’s cooperation with NATO; D Sergiyenko, ‘Ukraine Ousts
Russian Diplomat on Espionage Charges’ The Moscow Times (Moscow, 1 May 2014).
98  See for a detailed discussion:  Sanderijn Duquet and Jan Wouters, ‘Diplomacy, Secrecy and
the Law’ in Corneliu Bjola and Stuart Murray (eds), Secret Diplomacy: Concepts, Contexts and Cases
(Routledge, London 2016).
99  Chatterjee (n 5)  184; Roberts (n 3)  89; Stefan Talmon, ‘Tapping the German Chancellor’s
Cell Phone and Public International Law’ (Cambridge Journal of International and Comparative
Law Blog, 2013) <http://​cjicl.org.uk/​2013/​11/​06/​tapping-​german-​chancellors-​cell-​phone-​public-​
international-​law/​>; Katharina Hone, ‘International Law Leaves Everyone Vulnerable in Cyberspace’
(Diploblog 2014) <http://​www.diplomacy.edu/​blog/​international-​law-​leaves-​everyone-​vulnerable-​
cyberspace> both accessed 21 August 2014.
100  Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America
v Iran) [1980] ICJ Rep §84.
101  ILC Commentary (n 4) 104; Marjoleine Zieck, ‘Diplomatiek En Consulair Recht’ in Nathalie
Horbach, R Lefeber, and Olivier Ribbelink (eds), Handboek Internationaal Recht (TMC Asser Press
2007) 290; Richtsteig (n 38) 101.
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266 Legal Duties of Diplomats Today

3.1 Sending States and their diplomats: whose obligation is it?

A question that has been left untouched until now is the assessment of who exactly
bears obligations under diplomatic law.102 A diplomat observes a function as the
representative of his or her State but the VCDR, in some instances, addresses dip-
lomats directly:  Article 41(1) is directed at ‘all persons enjoying such privileges
and immunities’. The wording of the VCDR reflects that the diplomatic ‘agent’ is
more than a ‘mere messenger of a sovereign’, as the function was conceptualized
historically.103 Grotius already considered that diplomats are ‘not simply the limb
of the sending state but persons with their own rights, the right of embassy’.104
Notwithstanding, the obligations under diplomatic law are considered obliga-
tions of the sending State.105 It is the sending State that entered into the Vienna
Convention and that is responsible for compliance by its agents. Retaliatory steps
taken by a host State to the detriment of individual diplomats are prohibited; this
is the case even when they are intended as a countermeasure against (perceived)
wrongs of the sending State, since such acts would undermine the institution
of diplomacy.106 In a number of cases however, diplomats may incur individual
responsibility for breaches of their duties. This is certainly true in regard to private
acts that breach Article 41(1), first sentence, or Article 42, for which the diplomat
enjoys immunity (except in the three cases exhaustively listed in Art 31(1) VCDR)
but is not exempted from liability. The VCDR’s wording regarding the rules on the
‘conduct of business’ (Article 41(2)) and ‘premises’ (Article 41(3)) is much more
general. It is the mission as a whole that has to observe these obligations rather
than the individual diplomat. However, most of the diplomats’ and the missions’
obligations run parallel to those of the sending State.

3.2 Avenues for redress under diplomatic law

Over the years, international lawyers have extensively discussed how the breach of
international legal obligations under the VCDR relates to the sanctions foreseen
in that Convention and the general international law of State responsibility.107
There are only a limited number of specific means to address violations of obli-
gations by the diplomatic agent and/​or the sending State. When a wrongdoing

102  In its ‘Draft Articles on State Responsibility’, ILC Yearbook 2001, vol II, the ILC mainly focuses
on the responsibilities of receiving States.
103  Lechner (n 3) 245.
104  Geoff Berridge, ‘Grotius’ in Geoff Berridge, HMA Keens-​Soper, and Thomas G Otte (eds),
Diplomatic Theory from Machiavelli to Kissinger (Palgrave Macmillan, Basingstoke 2001) 60.
105  Denza (n 1) 374. See also eg the Dutch Government’s position on ‘Diplomatic Immunity’,
as reflected on their website <http://​www.government.nl/​issues/​embassies-​consulates-​and-​other-​
representations/​diplomatic-​immunity> accessed 22 August 2014.
106  James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction,
Text and Commentaries (CUP, Cambridge 2002) 292.
107  Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe:  Self-​Contained Regimes
in International Law’ (2006) 17 European Journal of International Law 483; Robert D Sloane, ‘On
 267

The Consequences of a Breach of Diplomatic Obligations 267

occurs, a receiving State has to resort to means of defence and sanctions provided
for in diplomatic law itself.108 Only diplomatic retorsions (ie ‘unfriendly’ conduct
not inconsistent with any international obligation and thus by definition allowed
under diplomatic law) are justifiable.109 Based on functional grounds, the ICJ has
excluded the use of general countermeasures in a diplomatic context.110 It stressed
that the existence of a ‘diplomatic system’, which lays down particular obligations
for participating States, identifies wrongdoings as well as a limited number of spe-
cific means to address them.111 Moreover, even in circumstances not related to the
conduct of diplomatic relations, countermeasures are only allowed as long as these
‘respect the inviolability of diplomatic or consular agents, premises, archives and
documents’.112
In light of the foregoing, it is useful to recall the measures which a receiving
State seeking compliance with the VCDR can adopt vis-​à-​vis a sending State.
Actions that are considered admissible in the ‘system’ of the Vienna Convention
range from soft options to harder ones. First, minor offences may be drawn to
the attention of the head of mission or the foreign government. If the former so
decides, he or she can take appropriate action (eg disciplinary sanction) regarding
the diplomat in question. A receiving State may also ask the agent to voluntarily
remedy any damage caused or, where appropriate, to voluntarily pay a fine, with-
out immunity being lifted.113 As has been explained, the receiving State can also
request the sending State to waive its agent’s immunity (Art 32 VCDR).
In a second step, grave breaches of diplomatic obligations or the recurring of
(minor) offences may give rise to more resolute measures. The receiving State can
withhold certain privileges enjoyed by the mission. This so-​called ‘restrictive read-
ing of the Convention’ can occur across the diplomatic spectrum. Practice has
seen numerous applications: a request to downsize the mission (Art 11 VCDR),
a prohibition to use radio communication equipment (Art 27(1) VCDR), and

the Use and Abuse of Necessity in the Law of State Responsibility’ (2012) 106 American Journal of
International Law 447.
108  The ICJ, in Tehran Hostages (n 100), made clear that if a State violates a rule of diplomatic law,
the injured state will be entitled to respond, but it can only apply those sanctions that are foreseen
in the diplomatic system. See: Sloan (n 107) 492; L A N M (Bert) Barnhoorn, ‘Diplomatic Law and
Unilateral Remedies’ (1994) 25 Netherlands Yearbook of International Law 39.
109  See Salmon (n 39) 481, who submits that the VCDR ‘admet la rétorsion mais ne fait aucune
place aux représailles’. Such acts do not amount to countermeasures as understood by the ILC in its
Draft Articles on State Responsibility (n 102) 133.
110  ‘[V]‌iolations of diplomatic or consular immunities could not be justified even as countermeas-
ures in response to an internationally wrongful act by the sending State’ as this would undermine
the institution of diplomatic relations. See the ILC’s 2001 Draft Articles on State Responsibility
(n 102) 134 on the Tehran Judgment.
111  It is in this sense that the Tehran Hostages Case should be read: if a State violates a rule of diplo-
matic law, the injured state will be entitled to respond, but it can only apply retorsions that are fore-
seen in the diplomatic system—​see Sloane (n 107) 492. On the ‘special sanctions rule’, see Barnhoorn
(n 108) 43 et seq.
112  See article 50(2)(b) of the ILC’s 2001 Draft Articles on State Responsibility (n 102)  131;
Salmon (n 42) 481.
113  This is, among others, common in the Belgian (Dopagne, Duquet, and Theeuwes (n 9) 82) and
Norwegian practice (n 8).
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268 Legal Duties of Diplomats Today

the adoption of quotas on the import of certain products by the mission (Art
36(1) VCDR). Such ‘restrictive applications’ of the VCDR are permissible under
the Convention. This being said, the admissibility of a violation (eg the lifting
of immunity) as a countermeasure remains doubtful under the ‘system’ of the
Convention, as explained above. Some receiving States inform missions that a
certain measure will be taken when a particular violation of a local law occurs.
Norway, for example, reserves, on the basis of technical regulations, the right to
investigate instances of interference caused by a mission’s radio transmitters. The
country also announced that it may impose such modifications or improvements
to the installation as are necessary to resolve the problem.114
Ultimately, it is possible for the receiving State to have the diplomat in question
removed from the territory. Usually, a request to the sending State to recall the agent
will precede a persona non grata declaration, although both concepts are often con-
fused. A third hypothesis is observed in practice, in which the sending State withdraws
the diplomatic agent because the receiving State announces that it will no longer
respect his or her diplomatic status with regard to a particular case.115 The conse-
quences are the same: the diplomat will return to the sending State, or, at least, ter-
minate his functions with the mission (Art 9 VCDR).116 This decision is a political
one for which no reasons have to be given and against which no judicial appeal lies. In
a recent Canadian court case, it was submitted that the ‘usual rules of administrative
law –​those concerned with procedural fairness and the rule of law –​do not apply’.117
Lastly, when diplomatic relations between sending and receiving States are in
a difficult condition, for example, in cases of alleged interference, a number of
other measures may be applied. The most serious one is the severance or termin-
ation of diplomatic (and sometimes also consular) relations, which happens only
exceptionally. A recent example is Venezuela’s 2014 breaking off (on the grounds
of interference in internal affairs) and restoring of diplomatic ties with Panama.118
Canada closed its Tehran embassy and expelled Iranian diplomats in 2012: during
the suspension of diplomatic relations, Italy serves its interests, while Oman repre-
sents Iranian interests in Canada.119

114  Norwegian MFA, n 8.

115  See eg the recalling by Saudi Arabia of the First Secretary in its Embassy in India. The diplo-
matic agent was accused of confining and raping two Nepali women who worked as his domestic help.
India had insisted on him being questioned by the police, but not on his removal. N Razdan, ‘Saudi
Arabian Diplomat Accused in Rape Case Leaves India’ BBC News (London, 17 September 2015)
<http://​www.bbc.com/​news/​world-​asia-​india-​34276049> accessed 3 April 2017.
116  Jean d’Aspremont, ‘Persona Non Grata’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia
of Public International Law vol VIII (OUP, Oxford 2012); Denza (n 1) 61–​73; Salmon (n 42) 348;
Roberts (n 3) 206–​15.
117  Copello v Canada (Minister of Foreign Affairs), FCA 295 (Federal Court of Appeal, Can LII,
2003), §§ 21–​22.
118  The countries did not have diplomatic relations between 5 March and 2 July 2014, ‘Venezuela
Restores Ties with Panama as New President Sworn In’ France 24 (Paris, 2 July 2014) <http://​www.
france24.com/​en/​20140702-​venezuela-​maduro-​ties-​panama-​new-​president/​> accessed 22 August 2014.
119  Government of Canada, ‘Canada-​Iran Relations’ <http://​www.canadainternational.gc.ca/​iran/​
canada-​iran/​index.aspx> accessed 22 August 2014.
 269

The Consequences of a Breach of Diplomatic Obligations 269

3.3 The diplomatic system as a self-​enforcing system

The diplomatic legal framework, by itself, has the capacity to be self-​enforcing.
The principle of reciprocity—​a fundamental underlying principle of the diplo-
matic system—​can also be conceptualized as a mechanism fostering compliance.
Typically, reciprocity is seen as the embodiment of the States’ desire to see the pro-
tection they offer to foreign diplomats in their territory equally accorded to their
own diplomats who are accredited in another country.120 In other words, reci-
procity serves as the incentive for State parties to the VCDR to apply the highest
standards of protection: it is in their own and their diplomats’ best interest to do
so. Yet, in addition to the principle of reciprocity as an interest, it also serves the
related function of a legal sanctioning mechanism because it de facto facilitates
the compliance of diplomats with their obligations under Article 41 VCDR.121
In this sense, Bruno Simma and Dirk Pulkowski noted that ‘at least at the time
when the Vienna Convention was drafted, the ILC appears to have been of the
view that the symmetry of its obligations would allow reciprocal reprisals’.122 In
the event of the violation of a well-​accepted rule concerning, for instance, the
freedom of movement of diplomats, the injured State may feel entitled to act
in the same way as the State responsible for the violation. Such measures are in
violation of the non-​discrimination principle of Article 47 VCDR.123 A  more
appropriate solution in the system of the Convention is for sending States to ask
for compliance by noting that diplomats of the receiving State are fully entitled to
such rights in the former States’ territory.124
The reciprocity principle also has a preventive nature. Most States, in their prac-
tice as sending States, instruct their diplomats to respect obligations under the
VCDR. As such, a State will want to avoid the failure of its diplomats to meet their
obligations under the Vienna Convention since it may cause the receiving State to
react. Similarly, protocol services of receiving States draw the rules embodied in
Articles 41 and 42 to the attention of diplomats in the corps diplomatique, often in
an administrative note sent to the missions present in a certain capital.125

120  Alain Plantey, Principes de Diplomatie (2nd edn, Editions A Pédone 2000) 207–​08.
121  Lechner (n 3) 245.
122  Simma and Pulkowski (n 107) 513, referring to the ILC Commentary (n 4) 105.
123  Article 47(2)(a) VCDR allows for retorsions as well as for a restrictive reading of provisions of
the Vienna Convention, yet without breaching the latter; Salmon (n 42) 54.
124  See the example of the restriction of the movement of diplomats in Syria in 2006, discussed in
n 11. By way of reaction, the American embassy, in an attempt to convince the Syrian MFA, noted
that: ‘diplomats normally travel all over the country to which they are posted and do not need to ask
permission for such trips, adding that no such restrictions are imposed on Syrian diplomats posted to
Washington or New York’.
125  See the examples provided with regard to traffic codes (n 8). In a similar vein, see the reference
in Roberts (n 3) 150, to the Memorandum on Diplomatic Immunity, sent to all new diplomats taking
up posts in London, in which the UK Foreign and Commonwealth Office insists on respect for the
obligations under Article 41 VCDR; see also the reminder by the Norwegian MFA that local regula-
tions apply to the use of real estate and that ‘it may be necessary to obtain relevant permits from the
municipal planning and building authorities’ (n 8).
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270 Legal Duties of Diplomats Today

3.4 The outlook for alternative compliance mechanisms

In national practice a clear trend can be discerned towards the regulation of prac-
tices with a view to limiting abuses, for example in relation to employment law dis-
putes, traffic offences, rental disputes, or the performance of profitable activities by
family members of diplomats. States, especially those that host a large number of
diplomats, tend to look for creative solutions to ‘force’ diplomats to abide by obli-
gations. In this, nations have been predominantly concerned with the individual
duties of diplomats, especially those relating to respect for local regulations. Given
the particular characteristics of the diplomatic system, proposals mostly focus on
actions other than judicial enforcement vis-​à-​vis diplomatic agents.
As an alternative to soft compliance mechanisms, States have used media to
pressure diplomats into compliance when other attempts remain unsatisfactory.
One notable example is the release of general data on traffic offences as well as the
names of the missions who topped the list.126 Such ‘naming and shaming’ exercises
receive extensive press attention and may cause sending States to remedy the situ-
ation. In addition, the application of ‘unfriendly’ policies that are not inconsist-
ent with the VCDR remains popular. Previously, the restrictive application of the
Convention (sometimes on the basis of reciprocity) to target either diplomats or
the sending State was discussed. Yet, States seem to become more inventive in their
attempts to enforce local laws. A noteworthy example of a US practice, picked up
by the Netherlands and Belgium, is to withhold diplomatic licence plates of mis-
sions with outstanding traffic tickets.127
Some proposals have focused on reparation rather than retribution. When the
American Congress passed the Diplomatic Relations Act (DRA), concerns arose in
relation to the immunity from jurisdiction of diplomats. Taking a victim-​oriented
approach, Garley proposed to establish a ‘Claims Fund’ to provide adequate protec-
tion for the rights of US citizens.128 The fund would compensate both tortious and
criminal acts of foreign diplomats; yet, the offending mission’s obligation to reim-
burse the fund would be strictly voluntary. Such proposed solutions to common
problems in the diplomatic system have remained largely underdeveloped since.

126  See for Belgium, UK, and US, B Waterfield, ‘Belgium’s Fury over Unpaid Parking Fines by
Diplomats in Brussels’ The Telegraph (London, 26 December 2013) <http://​www.telegraph.co.uk/​
news/​worldnews/​europe/​belgium/​10538122/​Belgiums-​fury-​over-​unpaid-​parking-​fines-​by-​diplo-
mats-​in-​Brussels.html>; ‘Diplomats Owe £67m in London Congestion Charge Fines’ BBC News, 11
July 2013, <http://​www.bbc.com/​news/​uk-​23266149> both accessed 24 August 2014. An interesting
study on the correlation between political corruption of sending States and parking violations by
diplomats was conducted by Raymond Fisman and Edward Miguel, ‘Corruption, Norms and Legal
Enforcement: Evidence from Diplomatic Parking Tickets’ (2007) 115 Journal of Political Economy
1020–​48.
127  See the responses of the Belgian Minister of Foreign Affairs to parliamentary question CRIV 53
COM 236, 18 May 2011, 2 and written question no 5-​9872 (n 21).
128  Richard Scott Garley, ‘Compensation for “Victims” of Diplomatic Immunity in the United
States: A Claims Fund Proposal’ (1980) 4 Fordham Int’l LJ 135–​59.
 271

Concluding Thoughts 271

4.  Concluding Thoughts

International diplomatic law is based on a careful balancing of rights and obliga-

tions combined with strong reciprocal interests, both for sending and receiving
States. This chapter focused on the obligations included in Articles 41 and 42
VCDR within the larger context of diplomatic intercourse. Article 3 VCDR on
diplomatic functions also plays a crucial role, especially where the limitations of
the scope of the duties is concerned. Moreover, the VCDR provisions relating to
immunities, privileges, and inviolabilities cannot be disconnected from the obliga-
tions of diplomats. In addition, it was found that obligations of diplomats increas-
ingly stem from international law and human rights law, and, at least as far as
Member States of the European Union are involved, EU law.
Recent State practice also illustrates how complex societies shape a diplomat’s
obligations. First, practice confirms that technological advancements provoke a
new set of questions on the interpretation of diplomatic duties. New espionage
techniques and the increased use of cyberspace and social media by missions require
a certain degree of flexibility in interpreting the VCDR. Second, we discerned a
trend of ‘mediatisation of diplomacy’. Diplomats use old and new media to inter-
act with citizens, but also with States, for example to pressure them into com-
pliance. Related to that is the rise in citizens’ expectations. In their home States,
citizens question governments when foreign diplomats repeatedly fail to observe
their obligations. More problematic are citizens’ expectations related to certain
functions of diplomats—​eg the participation in popular fund-​raising activities or
the use of an embassy for parties or sports activities—​that may be at odds with
diplomatic obligations. However, the issue here seems to relate to an overly broad
conception of the tasks of diplomats rather than a failure to comply with obliga-
tions as such.
In light of technological developments, altered citizens’ expectations and an
increase in international and regional legal obligations, State practice has been
subject to change over the past fifty years. Throughout this chapter we provided
examples mostly of instances in which the obligations of diplomats had not been
observed. Nevertheless, the Vienna Convention’s system still stands. While legal
arguments based on the VCDR are regularly invoked by States and sometimes
rebutted, and a balance between rights and obligations is sought, the system as
such has been questioned only very rarely. It remains remarkable to see how the
Vienna Convention constitutes both a living instrument and a timeless charter of
diplomacy.
27

16
The Duty of Non-​Interference
Paul Behrens

1. Introduction

The duty not to interfere in the affairs of the receiving State is one of the principal obli-
gations incumbent on diplomatic agents. It can look back on a long history;1 yet its
relevance for contemporary diplomatic relations is undiminished today. Diplomatic
conduct which raises concern in this regard, frequently involves verbal messages: in
August 2016, for instance, the Iraqi government asked for the withdrawal of Thamer
Al-​Sabhan, the Saudi Ambassador to the country, after he had stated that Shia mil-
itia were contributing to tensions with the Sunni part of the population in Iraq.2 At
times, however, the relevant conduct can dispense with words altogether and still
send out a clear (and at times even dramatic) message. The case of Kevin Vickers,
the Canadian Ambassador to Ireland, may be recalled in that context. In May 2016,
Vickers, who had been invited to a ceremony commemorating the deaths of British
soldiers in the 1916 Easter Rising, forcefully tackled a protester who had interrupted
the proceedings.3
Today, the rule against interference has, with effect for diplomats at permanent
missions in inter-​State diplomacy, found its codification in the Vienna Convention.
By so doing, the drafters made clear that the rule is more than a matter of proto-
col and courteoisie, but a legal obligation. However, the concept as enshrined in
Article 41(1), remains vague: the VCDR refers to the ‘duty not to interfere in the
internal affairs’ of the receiving State, but does not clarify which types of behav-
iour would fall within this remit. The ordinary meaning of the word ‘interference’

1  In that context, the case of the Spanish Ambassador to England in the 1580s, Don Bernardino
de Mendoza, can be recalled. The Ambassador was involved in the ‘Throkmorton plot’—​a conspir-
acy to overthrow the rule of Elizabeth I. Acting on advice of Alberico Gentili, the English govern-
ment decided to order the Ambassador’s expulsion. Paul Gore-​Booth (ed), Satow’s Guide to Diplomatic
Practice (5th edn, Longman, London 1979) 179, para 21.16.
2  ‘Iraq Asks Saudi Arabia to Remove Ambassador’ BBC Online (28 August 2016) <http://​www.
bbc.co.uk/​news/​world-​middle-​east-​37210557>.
3  ‘Canadian Ambassador Kevin Vickers Tackles Protester at Easter Rising Event in Dublin’ BBC
Online (26 May 2016) <http://​www.bbc.co.uk/​news/​world-​europe-​36390617>.

The Duty of Non-Interference. Paul Behrens. © Paul Behrens, 2017. Published 2017 by Oxford
University Press.
 273

Introduction 273
does not serve to narrow the scope,4 and the ICJ, in the few cases in which it had
the opportunity to explore the concept of diplomatic interference, did not offer a
definition of the term.5
In its discussions on the ‘Draft Articles Concerning Diplomatic Intercourse and
Immunities’ the ILC did, however, restrict the relevant meaning of diplomatic
interference in at least one respect. The original amendment, which introduced
the rule of non-​interference, had made reference to interference in the ‘foreign
politics’ of the receiving State. That mention did not survive the debates. Early in
the debate, the British member Fitzmaurice took issue with the phrase and stated
that it was the role of diplomats ‘precisely, if not to interfere, at least to concern
themselves with its foreign policy’.6 It was a view shared by other members,7 and
the 1957 draft articles only make reference to the ‘internal affairs’ of the receiving
State, as does the VCDR itself.8
That limitation apart, the rule against interference still enjoys a wide scope and
can indeed relate to nearly any diplomatic involvement in matters in the receiving
State. On the basis of the way in which the obligation has been approached in State
practice and in the literature, the relevant conduct is best understood as behaviour
which introduces an outside element into internal matters of the receiving State,
and, by so doing, causes a disturbance.9
Yet the practical application of a concept whose boundaries are drawn as wide
as that, can easily cause difficulties and may indeed hamper the fulfilment of
tasks which diplomatic agents feel entitled to perform. The fact must be taken
into account that the VCDR expressly recognizes the existence of certain func-
tions which attach to the diplomatic office and which may well have an impact
on the same situation in which receiving States claim that conduct of interfer-
ence has come into existence. Similar difficulties arise when diplomatic agents
involve themselves in the protection or monitoring of human rights in the host

4  See on this Oxford English Dictionary (OUP, Oxford, online version 2014)  <http://​www.oed.
com>, ‘interfere (v)’, 4b and 5.
5  In the 1950 Asylum Case, the ICJ noted that diplomatic asylum was, in principle, ‘an intervention
in matters which are exclusively within the competence’ of the territorial State, Asylum Case (Colombia
v Peru) (Judgment) [1950] ICJ Rep 266, at 275; and in the 1980 Tehran Hostages Case, the Court
stated that interference was one of the ‘abuses of [diplomatic] functions’, and acknowledged that it was
difficult to determine exactly when the diplomatic function of observation would involve acts such
as espionage or interference (Case Concerning United States Diplomatic and Consular Staff in Tehran
(United States of America v Iran) ICJ Reports 1980, 38, para 84 and 39, para 85). A 2009 applica-
tion by Honduras, claiming a violation of VCDR art 41(1) by Brazil, never reached decision stage
(Application Instituting Proceedings by the Republic of Honduras against the Federative Republic of Brazil,
28 October 2009 <http://​www.icj-​cij.org/​docket/​files/​147/​15935.pdf>, para 11).
6  ILC Yearbook 1957 vol I, 145, para 76 (Fitzmaurice).
7  See ibid 146, para 2 (Ago), para 7 (Tunkin), and para 11 (Yokota).
8  At times, the claim is advanced that the ILC had imposed a further restriction by excluding diplo-
matic activities performed on instructions. Cf Eileen Denza, Diplomatic Law (4th edn, OUP, Oxford
2016) 377. That position does not hold up to scrutiny: the ILC records show that a reference in the
draft commentary to the effect that diplomats may not interfere ‘outside their functions’, did not find
favour with the majority and was deleted. See ILC Yearbook 1957 vol I, 220, para 74 (García Amador)
and cf ibid para 77 (Tunkin) and para 80 (Chairman).
9  See Paul Behrens, Diplomatic Interference and the Law (Hart Publishing, Oxford 2016) 56.
274

274 The Duty of Non-Interference

country—​conduct which is not specifically addressed in the VCDR but which,

under certain circumstances, can rely on equally valid bases in international law.
This chapter provides an examination of the rule of interference and the rele-
vant competing norms whose simultaneous existence can inform the evaluation of
diplomatic conduct in situations of this kind. It explores both confrontational and
conciliatory methods to resolve the meeting of the divergent provisions and in so
doing, critically engages with the question whether it is possible at all to establish
objective parameters for the assessment of the underlying conduct, or whether
interference is, as some have suggested, a concept which may not be susceptible to
the application of objective guidelines in the field.10

2.  Diplomatic Interference and Competing Norms

In many cases of alleged interference, the sending State does not put up a legal
defence. And yet, on occasion sending States insist that their diplomats did not
deserve a negative reaction, because of certain circumstances which have to be
taken into account. There are two situations in particular in which defences have
been advanced. The first arises when the sending State considers the conduct to fall
within ordinary diplomatic functions: the envoy was ‘merely doing his job’. The
second concerns diplomatic involvement in human rights: in these cases, it may be
the overly sensitive attitude of the receiving State that is to blame, or the envoy has
again only performed tasks which fall within the ordinary functions of a mission.

2.1 Diplomatic interference and diplomatic functions

Allegations of diplomatic interference have been advanced in a wide range of
situations—​including incidents in which diplomatic agents made critical remarks
on governmental policies, engaged in debates with members of the opposition in
the receiving State, and made addresses to the public which the host government
considered propaganda.
But it is not an uncommon feature in such cases that the same instrument
which outlaws diplomatic interference permits diplomatic agents to take an active
interest in the topics in question. It is a problem which the US Ambassador to
Zimbabwe, Christopher Dell, highlighted in a radio interview in 2007. Following
a question about President Mugabe’s allegations that foreign diplomats were sup-
porting the opposition, Dell stated that the government of Zimbabwe relied heav-
ily on those parts of the VCDR which outlawed interference in internal affairs,
while ‘conveniently ignoring other Articles of the Convention’ obliging receiving

10  Cf Government of the Netherlands, Memorandum of Reply concerning the Bill for approval
of the Vienna Convention on Diplomatic Relations, Statement of 8 March 1983, Bijl Hand II
1982/​83—​16644 (R1158) No 7, 36–​37, in Robert Siekmann, ‘Netherlands State Practice for the
Parliamentary Year 1982–​1983 (1984) Netherlands Yearbook of International Law 308.
 275

Diplomatic Interference and Competing Norms 275

States ‘to allow diplomatic missions to ascertain […] the conditions and develop-
ments in the receiving State’.11
The difficulty arises in particular from the fact that the tasks of the diplomatic
mission which the VCDR recognizes, reveal a concept which is similarly wide as
that of the diplomatic duty enshrined in Article 41(1). Article 3(1) makes reference
to five functions—​representation, the protection of interests of the sending State
and its nationals, negotiation, observing circumstances in the receiving State (and
reporting on them to the sending State), and the promotion of friendly relations
between both States. In this context, there are three aspects in particular which
contribute to a considerable potential for friction between the relevant tasks and
the duty of non-​interference.
For one, as in the case of the formulation of diplomatic duties, the ILC was
reluctant to go into much detail where the wording of the permissive norm of
Article 3 was concerned. The five functions are therefore phrased in a rather gen-
eral way, with only two restrictions which are expressly mentioned: the protection
of interests is subjected to ‘the limits permitted by international law’, and the func-
tion of observation is likewise restricted to ‘all lawful means’.12 Yet it would be
wrong to read too much into that wording: Do Nascimento e Silva is right when
he points out that ‘every provision’ of the VCDR ultimately has to be performed
within the limits of international law anyway.13 The scope of the codified tasks is
therefore extensive:  the function of representation in particular can cover most
areas of diplomatic life in the receiving State; the promotion of friendly relations
certainly covers direct engagement with political parties and people in the host
country, even where such activities constitute, in the eyes of the diplomatic hosts,
partisan conduct or propaganda.
The protection of interests of the sending State is similarly wide in nature.
A  2004 incident involving the British High Commissioner in Kenya (Edward
Clay) offers an illustration. Clay had, before the British Business Association in
Kenya, launched a strongly worded attack on alleged corruption in the govern-
ment of the receiving State.14 That conduct of this kind would result in criti-
cism, may not appear surprising (the Kenyan Foreign Minister accused Clay of
‘abus[ing] us’ and called on him ‘to explain the facts of the case or else […] shut
up’).15 Yet on the face of it, there is no reason why conduct of this kind should not
find its basis in Article 3(1)(b). Britain was the biggest foreign investor in Kenya;16
corruption in the receiving State therefore would have had a direct effect on her

11  SW ‘Radio Africa’s Violet Gonda talks with United States ambassador to Zimbabwe Christopher
Dell in an interview for the Hot Seat programme’, SW Radio Africa (20 March 2007) <http://​www.
zimbabwejournalists.com/​print.php?art_​id=1992>.
12  VCDR art 3(1)(b) and (d).
13  Geraldo Eulálio Do Nascimento e Silva, Diplomacy in International Law (A W Sijthoff, Leiden
1972) 63.
14 Jeevan Vasagar, ‘Kenyan President Faces Rebellion on Sleaze’ The Guardian (London, 24
February 2005); Lucas Barasa, ‘Criticism That Rubbed Officials The Wrong Way’ The Nation (Kenya
3 February 2005).
15  Vasagar (n 14). 16 ibid.
276

276 The Duty of Non-Interference

economic interests. Whether the way in which the High Commissioner protected
these interests still constituted a lawful measure, is a different question to which
this study will return.17
In its commentary on the Draft Articles on Diplomatic Intercourse and
Immunities, the ILC referred to one particular activity as an example for inter-
ference: the frequent case of diplomats taking part in ‘political campaigns’.18 That
reference too, is general in nature: ‘political campaigns’ can cover a wide area and
might even include the observation of human rights demonstrations in the receiv-
ing State. Yet it is doubtful whether State practice after the adoption of the Vienna
Convention allows the conclusion that the international community is willing to
withdraw such activities from the remit of the function of observation.
A second reason for the prevailing difficulty concerning the co-​existence of the
rule against interference and diplomatic functions lies in the fact that the ful-
filment of diplomatic tasks often presupposes the existence of preliminary and
ancillary acts. The function of observation offers an example: some sources of dip-
lomatic agents may feel more at ease if the flow of information goes in both direc-
tions and may indeed make this a condition for sharing their knowledge. In other
instances, the details of some developments are only accessible to diplomats if they
participate, to a certain degree, in the developments themselves.
And the need for preliminary and ancillary acts is further underlined by the
rule of Article 26 (freedom of movement): the rationale for this freedom must
at least in part be seen in the fact that it is a necessary aspect of the function of
observation.19
Conduct which supports the function of observation may be as ostensibly harm-
less as the asking of questions and the discussion of particular events (although
this too has sometimes triggered negative reactions).20 At the other end of the
range is conduct which involves the diplomat directly in ongoing developments.
An example is the 1989 case of two British diplomats21 in Romania who joined
students and workers in their march on the national television station.22 At the
time, their conduct came under attack in their own State.23 The diplomats them-
selves made express reference to the function of observation,24 and there is lit-
tle doubt that they had the opportunity to observe events in considerable detail.
Whether the meeting of the function of observation and the duty of non-​interfer-
ence should in this case be resolved in favour of Article 3, is a different matter.25

17  See text to nn 92–​95 and nn 99–​100, below.

18  ILC Yearbook 1958 vol II, 104, art 40, para 2. 19  Denza (n 8) 173.
20  Cf ‘ “Unacceptable” overseas interference over expelled envoy: Gambia’ Agence France Presse (30
August 2001).
21 Martin White, ‘Why We Joined Student Protests, by Britons’ Press Association (26
December 1989).
22  Alan Travis, ‘Rebirth of Romania: Thatcher Praises People’s Courage’ The Guardian (London 28
December 1989).
23  British Members of Parliament criticized their actions (Travis, n 22), as did a former British
Ambassador, see text to n 113 below.
24  Robin Stacey, ‘British Envoys Joined Revolt; Romania’ The Times (London 27 December 1989).
25  See text to nn 114–​116 below.
 27

Diplomatic Interference and Competing Norms 277

The third consideration relates to the fact that even the functions which are
named in Article 3(1)(a) VCDR are not meant to constitute an exhaustive list. The
words ‘inter alia’, which were included in the chapeau, make clear that the named
tasks represent only selected members of that conceptual category. In principle, it
is possible for additional functions to join their counterparts if they can find a basis
in customary international law or through bilateral agreement. The list does give
the clearest indication of tasks on which the international community has been
able to find consensus, but the question of the existence of functions outside this
provision gains some relevance where diplomatic involvement in human rights is
concerned—​a point which the following sub-​section addresses.

2.2 Diplomatic involvement in the human rights situation in the

receiving State
Diplomatic involvement in human rights has traditionally met with criticism not
only by the receiving State, but by academic commentators as well. The 1979 edi-
tion of Satow, for instance, still supported a restrictive line when it stated that a
head of a mission must occupy himself only with the interests of the subjects of his
own State ‘and especially not with those of the subjects of the local sovereign’.26
And yet, the consideration cannot be dismissed that human rights involvement
may be based on grounds which are recognized under international law. A situ-
ation of this kind arises when the rules of diplomatic law themselves allow activities
of this kind—​a question which will be explored in sub-​section 2.2.1. On other
occasions, grounds outside diplomatic law—​in particular, norms addressing the
State of which the diplomatic agent is an organ—​may call for involvement in the
human rights situation of the receiving State. That scenario will be discussed in
sub-​section 2.2.2.

2.2.1 Human rights involvement within the framework of diplomatic

functions
Since Article 3 does not include an exhaustive list of diplomatic tasks,27 it is pos-
sible that customary law has identified further functions, and that these functions
extend to diplomatic involvement in human rights.
But that assessment cannot be made lightly. There are numerous instances in
which sending and receiving State held divergent views where the evaluation of
diplomatic involvement in human rights was concerned,28 demonstrating that
there is continued sensitivity among States from different geographical regions and
with different political systems where diplomatic involvement in human rights is

26  Gore-​Booth (n 1) 450. But see, for a change in direction, Ivor Roberts (ed), Satow’s Diplomatic
Practice (OUP, Oxford, New York 2009) 153, para 9.58.
27  See text after n 25 above.
28 See on this Paul Behrens, ‘ “None Of Their Business?” Diplomatic Involvement in Human
Rights’ (2014) 15 Melbourne Journal of International Law 190, 197–​98.
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278 The Duty of Non-Interference

concerned. Given these disagreements, it is difficult to speak of a sui generis func-

tion to this effect which customary law recognizes: consistency of State practice
can hardly be established.29
On the other hand, it is conceivable that human rights involvement constitutes
in certain situations an emanation of one of the traditional functions which the
Convention recognizes.
That is particularly clear where diplomats act as messengers of the views held
by their governments, and therefore pursue the function of representation. But
the function of observation, too, lends itself to obvious overlaps with diplomatic
human rights monitoring: Article 3(1)(d) is certainly broad enough to encompass
the human rights situation of the receiving State, at least as long as the relevant
information can be obtained through publicly accessible sources. The wording of
the article also takes into account the sometimes dynamic nature of the target of
observation (‘developments’) and would, for instance, embrace the monitoring of
demonstrations against perceived human rights abuses. The observation function
may even cover conduct which the receiving State would consider active participa-
tion in such events. The inclusion of necessary preliminary and ancillary acts in the
consideration30 may also support the position that diplomatic agents are at times
required to go beyond a merely passive presence on the sidelines—​in situations, for
instance, when they have to engage in conversations with the protesters themselves
to obtain a clearer picture of ongoing events.31
Even the protective function (Article 3(1)(b)) can serve as a basis for diplomatic
involvement in human rights. At first sight, it seems to go in quite a different dir-
ection: the rights in question appear to be interests of nationals of the receiving and
not the sending State. But human rights violations in one State may well have an
impact on the interests of another. Sen points out that such violations ‘may sow the
seeds of a revolution whose repercussions may not be confined within the bound-
ary of the particular state’32—​an observation which was dramatically reinforced by
the wave of revolutions that shook the Arab world in 2011. In other cases, human
rights violations set in motion a flow of refugees which had a direct impact on the
affairs of the sending State.
The significance of diplomatic tasks in this context is further underlined by
Article 25, which places a duty on the receiving State to ‘accord full facilities’ for
the performance of diplomatic functions. It is a rule which, as Denza has noted, is

29 See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v United States of America) (Merits), ICJ Reports 1986, 98, para 186 (hereinafter ‘Nicaragua Case’).
Nothing, of course, prevents individual States from recognizing diplomatic human rights involvement
as a function in their bilateral relations, and there are numerous instances in which sending States
were able to appoint diplomats whose stated purpose it was to deal with human rights or who were
appointed as ‘human rights attachés’. Behrens (n 9) 74.
30  See text at nn 19–​25 above.
31  See on this the incident involving Robin Meyer, Second Secretary of the US Interests Section
in Havana in 1996, Paul Behrens, ‘Diplomatic Interference and Competing Interests in International
Law’, (2012) 82 BYIL 203.
32  Biswanath Sen, A Diplomat’s Handbook of International Law and Practice (Martinus Nijhoff,
Dordrecht, London 1988) 54.
 279

Diplomatic Interference and Competing Norms 279

‘usually invoked in order to lend additional weight to a diplomatic claim or protest
based on a more specific provision’.33 In the context of diplomatic human rights
involvement, Article 25 gains particular significance where nationals of the receiv-
ing State are concerned who work for the diplomatic mission. Receiving States are
not always welcoming towards such employment and have resorted to negative
sanctions against such employees in the past.34 In cases of this kind, the receiving
State might not only violate human rights law, but also its duty under Article 25 of
the Convention, and the diplomatic mission is entitled, on behalf of the sending
State, to issue a critical evaluation of the receiving State’s conduct and to demand
the fulfilment of its obligation.

2.2.2 Human rights involvement based on other norms of international law

In the absence of traditional functions, diplomatic involvement in human rights
may yet be able to rely on norms of international law outside the norms of diplo-
matic relations. The addressees of such norms will usually be States themselves, but
where States make use of diplomatic missions as their organs,35 diplomats are able
to invoke these rules on their behalf. At the same time, they have to observe the
limitations which international law imposes on the sending State.
The presence of such permissive rules becomes apparent when a receiving State
alleges interference in matters over which it cannot claim exclusive ownership. The
most prominent of these situations arises if the subject concerned is an obligation
which the receiving State owes erga omnes.36 In view of rights affected by erga
omnes obligations, the ICJ pointed out that ‘all States can be held to have a legal
interest in their protection’.37
And reference to erga omnes norms is typically made where human rights are
involved—​particularly where they have been subjected to severe threat. Protection
from slavery, racial discrimination,38 the prohibition of torture,39 and the outlaw-
ing of genocide40 have all been accepted as norms carrying erga omnes charac-
ter. Furthermore, given the connection between international crimes and serious
human rights violations,41 there is good reason to follow those authorities on

33  Denza (n 8) 171.

34  See Bhagevatula Murty, The International Law of Diplomacy (Martinus Nijhoff, New Haven,
Dordrecht, Boston, London 1989) 501. For a 2009 case in Iran, see James Tapsfield, ‘UK Embassy
Staff Arrested for “Role” in Iranian Unrest’ Belfast Telegraph (29 June 2009); ‘British, French Embassy
Workers on Trial Over Iran Protests’ CNN.com (8 August 2009) <http://​edition.cnn.com/​2009/​
WORLD/​meast/​08/​08/​iran.detainee.trials/​>.
35  See on this point ILC Yearbook 2001 vol II Pt 2, 44, art 6, commentary, para 4.
36  Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v Spain)
[1970] ICJ Rep 3, 32, para 33 (hereinafter ‘Barcelona Traction’).
37 ibid. 38  ibid 32, para 34.
39 Cf International Criminal Tribunal for the Former Yugoslavia (ICTY), IT-​95-​17/​1-​T (Trial
Chamber), The Prosecutor v Anto Furundžija, Judgment 10 December 1998, para 151.
40  Barcelona Traction, 32, para 34.
41  Cf ICTY IT-​99-​36-​T (Trial Chamber), Prosecutor v Brđanin and Talić, Decision on Motion by
Radoslav Brđanin for Provisional Release, Decision of 25 July 2000, fn 61.
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280 The Duty of Non-Interference

international criminal law who suggest that the suppression of all international
crimes should be an obligation erga omnes.42
A diplomat therefore who makes representations in these fields, can invoke a
powerful basis for his conduct. In the literature, the view has been expressed that,
given the importance of the rights affected by erga omnes obligations, all States
must be able to intervene to defend them.43 The ILC’s Draft Articles on State
Responsibility (DARS) provide for a right for any State to ‘invoke’ the responsi-
bility of another State, if the latter has breached an erga omnes obligation,44 and
it seems clear that this at least includes the making of certain verbal representa-
tions: in Article 48(2) DARS, reference is made to particular claims that the invok-
ing State can make against the responsible State—​cessation of the wrongful act,
assurances and guarantees for non-​repetition and performance of the obligation of
reparation.
Diplomatic statements which reflect critically on the failure of the receiving
State to fulfil erga omnes obligations, certainly fall in this category. That does not
mean that receiving States will generally display a welcoming attitude towards
them: charges of interference can be expected, even if (or particularly when) the
human rights violations were very serious. By itself, however, that does not weaken
the basis for diplomatic conduct in this field.
This ground for diplomatic involvement gains additional strength if the send-
ing State has not only the right to claim fulfilment of erga omnes obligations, but a
positive duty to do so. But the identification of such duties in international law has
proven difficult; and where they have been suggested in the literature, both their
existence and extent tend to be subject to controversy.45 The strongest case can
arguably be made on the basis of Common Article 1 of the Geneva Conventions
of 1949: under that rule, State parties ‘undertake to respect and ensure respect’
for the conventions ‘in all circumstances’. Given the universal acceptance of the
Geneva regime,46 there is good reason to speak in this regard of norms which the

42  See on this Larissa van den Herik, ‘A Quest for Jurisdiction and an Appropriate Definition of
Crime: Mpambara before the Dutch Courts’ (2009) 7 JICJ 1117, 1129.
43  Jeannie Rose Field, ‘Bridging the Gap between Refugee Rights and Reality: A Proposal for
Developing International Duties in the Refugee Context’ (2010) 22 IJRL 512, 535. See also Institute
of International Law, The Protection of Human Rights and the Principle of Non-​Intervention in the
Internal Affairs of States (Session of Santiago de Compostela, 1989) arts 1 and 2(2).
44  ILC Yearbook 2001 vol II Pt 2, 126, art 48(1), and see ILC Study Group on Fragmentation
of International Law, Fragmentation of International Law: Difficulties Arising from the Diversification
and Expansion of International Law (18 July 2006), A/​CN 4/​L 702 (hereinafter ‘Study Group on
Fragmentation’), C. Conclusions, fn 31.
45  That is even the case where obligations deriving from the Genocide Convention are concerned:
while the prohibition of genocide certainly carries erga omnes character, it is questionable whether the
duty to prevent and prosecute the crime is of the same nature. Focarelli points out that not even con-
tracting States have always felt an obligation to prevent the crime. Carlo Focarelli, ‘Common Article
1 of the 1949 Geneva Conventions: A Soap Bubble?’ (2010) 21 European Journal of International
Law 125, 140.
46  At the time of writing, the Geneva Conventions had 196 parties. International Committee of
the Red Cross, ‘States Parties to the Following International Humanitarian Law and Other Related
Treaties as of 5 Dec 2016’ <https://​ihl-​databases.icrc.org/​ihl>.
 281

Diplomatic Interference and Competing Norms 281

international community accepts as applying to all its members; and it appears
that the acts which State parties have to adopt under this provision would at least
include diplomatic measures.47
Outside the Geneva Conventions, it is difficult to identify norms which stipu-
late for all States a duty to act if faced with erga omnes obligations. Where the ICJ
did spell out duties incumbent upon all States, they tended to be negative obliga-
tions—​such as the obligation not to recognize a particular situation48—​and such
duties may of course impact on the conduct of diplomatic agents as well.
Yet the erga omnes interests which are arguably of the greatest relevance in dip-
lomatic relations concern a particular right enjoyed by peoples in receiving States:
that of the realization of self-​determination.49 The political facets of the right in
particular have informed diplomatic conduct in this regard. The right has thus
become relevant in cases where diplomats sought contact with the political oppos-
ition in the receiving State50 or engaged in active criticism of developments which
they considered to endanger the realization of that right.
That self-​determination carries erga omnes character, was confirmed in several
decisions by the ICJ.51 And yet, diplomatic involvement in this field will almost
unavoidably give the impression of support for a particular faction; and it has
therefore proved one of the most fertile fields for charges of meddling. In the ILC
debates, several members referred to such conduct in a negative way: Ago, for
instance, thought it ‘improper action’ for the head of a mission to give ‘moral or
financial support to a political party in the receiving State’.52
But here, the view of the international community may have undergone a
change. It is certainly difficult to ignore the many instruments that call for the ren-
dering of assistance by all States to peoples striving for self-​determination,53 and it
is understandable that commentators like Faundez are inclined to say that the situ-
ation with regard to ‘intervention’ has now been reversed: where, traditionally, the
involvement of third States was allowed only to assist the established government,

47  Focarelli (n 45) 145.

48 See eg Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136, 200, para 159 (hereinafter ‘Wall Opinion’).
49  Charter of the United Nations (adopted 26 June 1945, entry into force 24 October 1945) 1
UNTS XVI, art 1(2) (hereinafter ‘UN Charter’); International Covenant on Civil and Political Rights
(adopted 19 December 1966, entry into force 23 March 1976) 999 UNTS 171, art 1(1) (hereinafter
‘ICCPR’); International Covenant on Economic, Social and Cultural Rights (adopted 16 December
1966, entry into force 3 January 1976) 993 UNTS 3, art 1(1) (hereinafter ‘ICESCR’).
50  See on this the 2008 incident involving the US Ambassador to Bangladesh, Moriarty, who
courted criticism when he invited the leaders of several political parties to a ‘tea party’ at his residence.
‘US envoy discusses emergency with Bangladeshi Leaders’ BBC Worldwide Monitoring (Source:  The
Daily Star website, Bangladesh, 16 July 2008); Harun ur Rashid, ‘Diplomatic Norms and Some Local
Diplomats’, United News of Bangladesh (1 August 2008).
51  Case Concerning East Timor (Portugal v Australia), ICJ Reports 1995, 90, 102, para 29; Wall
Opinion, 199, paras 155, 156.
52  ILC Yearbook 1957 vol I, 149, para 36 (Ago). See also ibid 146, para 10 (Yokota).
53  See eg UNGA Res 2625 (XXV) (24 October 1970) (hereinafter ‘Friendly Relations Declaration’);
UNGA Res 3328 (XXIX) (16 December 1974) and UNGA Res 31/​33 (30 November 1976). At least
some of these resolutions arguably reflect customary international law (cf Nicaragua Case, 100, para
188 in relation to the Friendly Relations Declaration).
28

282 The Duty of Non-Interference

involvement today appears to be only permitted if it assists people striving for

self-​determination.54
The right to self-​determination, too, is capable of creating not only a common
interest for the international community, but also certain duties for the sending
State—​both with regard to negative obligations (the duty not to give support to
a situation which deprives peoples of this right)55 and positive duties (the duty to
assist in the realization of self-​determination).56 And the support of third States
matters: peoples faced with severe curtailments of their political rights often have
no other way to realise their right to self-​determination but through assistance by
those States and their diplomatic representatives.
On the other hand, the territorial integrity of the State against which self-​
determination is claimed, is likewise recognized in international law.57 Given the
existence of these diverging interests, there is good reason to accept certain limita-
tions on the right and indeed to follow the conclusions of the so-​called ‘remedial
school’, which allows for a more explicit analysis. According to that view, peoples
(outside the context of colonial or foreign oppression) must primarily strive to ful-
fil their right to self-​determination internally; a right to external self-​determination
(eg through secession) exists only as a last resort, if internal self-​determination
has been denied to them.58 These considerations assist in the identification of the
extent to which diplomats as organs of their States can rely on self-​determination
as a basis for their conduct. It appears that at least the right to internal self-​
determination can be invoked as long as the relevant situation is covered by that
concept.
This is of practical relevance in instances in which diplomatic agents assist a
people’s right to decide its own political development59 by offering a critical view
of irregularities in election procedures60 or by defending the rights of the oppos-
ition. Assistance to self-​determination may even extend to incitement of the local
population to certain actions—​as long as such actions do not themselves violate

54 Julio Faundez, ‘International Law and Wars of National Liberation:  Use of Force and
Intervention’ (1989) 1 Afr J Int’l & Comp L 85, 96, with reference to the particular case of colonial
domination.
55 Cf Wall Opinion, 202, para 163 (findings) D.
56  Friendly Relations Declaration, 5th Principle; UNGA Res 36/​103 (9 December 1981), Annex,
art 2(III) and Wall Opinion, 200, para 159. Against that view, cf Wall Opinion (Separate Opinion
Kooijmans) para 40.
57  On this, cf Friendly Relations Declaration, Preamble, para 15. Art 2 of the UN Charter, dealing
with principles, states that members shall refrain from the threat or use of force inter alia ‘against the
territorial integrity’ of any State (UN Charter art 2(4)). See also Conference on Security and Co-​oper-
ation in Europe, Final Act (Helsinki 1 August 1975), 14 ILM (1975), 1292, at IV.
58  Reference Re Secession of Quebec [1998] 2 S C R 217 (Supreme Court of Canada), para 138 (herein-
after ‘Secession of Quebec’); Rob Dickinson, ‘Twenty-​First Century Self-​Determination: Implications
of the Kosovo Status Settlement for Tibet’ (2009) 26 Ariz J Int’l & Comp L, 547, 553.
59  See on this ICCPR art 1(1)2; ICESCR art 1(1)2.
60  Cf the 2000 incident involving the British Ambassador to Peru, Robert Hart, who was accused
of interference after he had noted that there had been ‘a lot of irregularities during the [Peruvian
presidential] campaign and during the day of the vote’, Monte Hayes, ‘Peru’s Presidential Race Will
Require a Run-​Off ’ Associated Press (13 April 2000); ‘Peruanischer Präsident Fujimori muß sich
Stichwahl stellen’ Associated Press Worldstream –​German (13 April 2000).
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Diplomatic Interference and Competing Norms 283

international law. Incitement to lawful acts—​such as an encouragement of voters
to participate in forthcoming elections61—​could thus find its ground in diplo-
matic support towards the realization of internal self-​determination.
The question does, however, arise whether the protection of any human right
can form the basis for diplomatic conduct. Freedom from slavery, from racial dis-
crimination, and from torture are arguably rights whose protection has erga omnes
character;62 but it would be more difficult to consider other rights, including the
right to life (by itself ), in the same light.63 Self-​determination itself certainly pre-
supposes the existence of other human rights,64 including the ‘classical’ political
rights—​chief among them, the right to vote and to stand in elections;65 but pre-
sumably also freedom of assembly, and association, and freedom of expression.66
On the other hand, self-​determination is a group right, and its beneficiaries are
entities which fulfil the criteria of a ‘people’.67 That constitutes a difficulty in those
cases in which a diplomat made representations because the rights only of selected
individuals had been violated. The general rule here will have to be that this is not
an act which assists in the realization of a right owed erga omnes. But that rule must
allow for exceptions: it is not uncommon that the receiving State targets individu-
als precisely because of their relevance for the group—​the leaders of the group, say,
or prominent journalists—​and that restrictions of their rights then affect the exer-
cise of self-​determination by the collective. In situations of this kind, diplomatic
representations on individual human rights violations can still relate to the breach
of erga omnes obligations.
Outside situations where the protection of human rights corresponds to erga
omnes interests (or to a recognized diplomatic function), it is difficult to identify
grounds in international law for representations on these matters. A basis of this

61  See on this ‘Newsline 04-​04-​26. Macedonian Presidential candidate rejects U.S., EU calls for
participation in elections’ Radio Free Europe/​Radio Liberty (26 April 2004).
62  See text to n 39 above.
63  If the view is followed that the prohibition on international crimes has erga omnes character,
then certain, but not all violations of the right to life would be embraced by that concept. The tak-
ing of life, for instance, can constitute a crime against humanity or a war crime. But to qualify under
these crime categories, certain contextual elements need to be in place as well (cf Rome Statute of the
International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002), 2187 UNTS 3,
arts 7(1)(a) and 8(2)(a)(i)).
64  See Thomas D Musgrave, Self-​Determination and National Minorities (Clarendon Press, Oxford
1997) 98.
65  ICCPR art 25; American Convention on Human Rights (adopted 22 November 1969, entry
into force 18 July 1978)  1144 UNTS 123, art 23 (hereinafter ‘ACHR’); and cf First Protocol to
the European Convention on Human Rights (adopted 20 March 1952, entry into force 18 May
1954), 213 UNTS 262, art 3. For a critical view, see Daniel Thürer, ‘Self-​Determination’, in Rudolf
Bernhardt (ed), Encyclopedia of Public International Law, Volume 4 (Max Planck Institut für ausländi­
sches öffentliches Recht und Völkerrecht, Amsterdam etc 2000) 364, 367.
66  Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 32, para 55 (hereinafter ‘Western Sahara
Opinion’), and see Socialist Party and Others v Turkey (1999) 27 EHRR 51, at para 45.
67  UN Charter art 1(2); ICCPR art 1(1); Friendly Relations Declaration, 5th Principle. See also
Secession of Quebec, paras 123 et seq on the definition of ‘people’; and Elizabeth Chadwick, Self-​
Determination, Terrorism and the International Humanitarian Law of Armed Conflict (Martinus
Nijhoff, Hague, Boston, London 1996), 4 and 5.
284

284 The Duty of Non-Interference

kind can of course be specifically constructed between the sending and the receiv-
ing State,68 or it can be derived from the provisions of a multilateral treaty. The
latter scenario is of some importance, as treaties have come into existence which
allow State parties to take an interest in the protection of human rights without
having to demonstrate that they were affected by alleged violations. The underly-
ing obligation has thus become a duty erga omnes partes.69
Of particular importance are, in this context, certain human rights instruments
which allow one State to bring an alleged human rights violation by another State
to the attention of a supervisory body.70 This procedure may be limited to situa-
tions in which the latter State has accepted the competence of that body to receive
such communications,71 but where that is the case, the State has renounced the
right to claim that the relevant human rights situation is of no concern to other
Member States. That has direct consequences for diplomatic representations: dip-
lomatic involvement in human rights which are owed erga omnes partes, must be
possible, and diplomats may criticize the perceived violations or even warn the
receiving State of pending court action if the violations are allowed to continue.
Human rights treaties then can considerably enlarge the basis for diplomatic
action in this area: in the circumstances outlined above, diplomatic representations
can refer to any right which the treaty addresses. But diplomats wishing to invoke
this justification must also be aware of the interplay between rights and restrictions
which the treaty imposes—​including the limits which it accepts for the concept of
the right and the margin of discretion which individual States may enjoy in their
interpretation of its scope and boundaries.72

3.  Resolving the Situation: The Interplay Between Permissive

and Restrictive Norms

The fact that diplomats are often able to invoke grounds under international law
for conduct which the receiving State considers interference does not yet permit

68  See n 29 above.

69  See Study Group on Fragmentation, 23. With regard to States that are not party to the treaty,
the more restrictive rules on human rights involvement, as outlined above, continue to apply. A prom-
inent example would be the Genocide Convention: the ‘erga omnes partes’ character of the duty to
prevent the crime would, in light of article I of that Convention, be difficult to deny. Case Concerning
the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v Serbia and Montenegro) ICJ Reports 2007, 1, 154, para 430.
70  See Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS
222 (adopted 4 November 1950, entry into force 3 September 1953), art 33 (hereinafter ‘ECHR’);
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entry into force 21 October
1986) 1520 UNTS 217, art 47.
71  ICCPR art 41(1); see also ACHR art 45(1) and (2) and Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into
force 26 June 1987), 1465 UNTS 85, art 21(1).
72  See, for instance, Handyside v The United Kingdom (1979–​1980) 1 EHRR 737, 759 at para 57,
(but see also 754, para 49 in that case).
 285

Resolving the Situation 285

a legal assessment of the situation. What it means is that a situation has come
into existence in which different norms, ostensibly pointing in different directions,
have an impact on the same situation: the rule against interference meets compet-
ing norms of international law.
The Vienna Convention itself does not offer a solution for situations of this
kind. Under general international law two options suggest themselves for consid-
eration: confrontational mechanisms, which lead to the complete subordination of
one norm under the other,73 and conciliatory approaches, which seek to achieve a
co-​existence of the relevant rules.
The application of a confrontational approach is at times suggested on the basis
of a superior value which one of the affected norms is considered to enjoy.74 That
method has been proposed in some areas of diplomatic law as well—​especially
where the protection of specific human rights meets the duty to protect diplomatic
inviolability.75
Where the ban on diplomatic interference meets the exercise of diplomatic
functions, the ILC, in its commentary on the draft articles, likewise appeared to
suggest a hierarchical solution, by stating that representations made to protect the
interests of the sending State or its nationals do ‘not constitute interference in the
internal affairs of the receiving State’.76 But it is a phrase which raises more ques-
tions than it answers. The reference to ‘representations’ in particular is extremely
general and could include the use of insulting language or, as no addressee is speci-
fied, messages of support to the opposition. It is questionable whether the inter-
national community supports such a wide scope of diplomatic representations at
the expense of the rule of non-​interference.
The establishment of a hierarchy between restrictive and permissive rules in
this context is indeed questionable from the outset. The meeting of the rule of
non-​interference with diplomatic functions or with rights arising from erga omnes
obligations is in fact not a situation in which a superior interest meets an inferior
one. When the sovereign rights of the receiving State encounter the interests of the
sending State in this context, there can be little doubt that the interests on both
sides are accorded a high value by the international community.77

73  Such approaches may be enshrined in treaties (see eg UN Charter art 103), but they may also
derive from customary law—​such as the lex specialis rule and the lex posterior rule. Study Group on
Fragmentation, 8, para 2(5) and 17, para 24.
74  See eg the view of the UN Sub-​Commission on the Promotion and Protection of Human Rights
on the ‘primacy of human rights law over all other regimes of international law’, Sub-​Commission on
the Promotion and Protection of Human Rights (UN Economic and Social Council), The Realization
of Economic, Social and Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human
Rights, E/​CN 4/​Sub.2/​2000/​13 (15 June 2000), para 63.
75 See on this Secretary of State for Foreign and Commonwealth Affairs (UK), ‘Government
Report on Review of the Vienna Convention on Diplomatic Relations and Reply to “The Abuse of
Diplomatic Immunities and Privileges” ’ (Cmnd 9497, 1985), para 48, with reference to the ‘over-
riding right to self-​defence or the duty to protect human life’. But see on this problem Chapter 6,
Section 2.3.1 above.
76  ILC Yearbook 1958 vol II, 104, art 40, commentary, para 2.
77  For the particular case of the promotion of friendly relations, which plays an important role in
cases of diplomatic propaganda, see also UN Charter, art 1(2).
286

286 The Duty of Non-Interference

What is required is not subordination, but a mechanism that allows the core
contents of the individual interests to survive. A  more detailed and case-​based
analysis can achieve this by allocating a weight to the relative interests, correspond-
ing to the position they occupy in the circumstances of the individual case, and
by taking into account the impact which the diplomatic measure has in a specific
situation.
These are features not of a hierarchical, but of a mediating method. An approach
of this kind has better hope of commanding support among States and among
international courts and institutions which largely prefer conciliatory methods to
confrontational ones,78 and it would also be better aligned with the view suggested
by the ILC when it stated that the meeting of rules of international law ‘should be
resolved in accordance with the principle of harmonization […]’.79
Dogmatically, harmonization is best considered a technique of interpretation
which takes into account the contents of the rules that impact on the particu-
lar situation80 and thus avoids the assumption of a normative conflict.81 It is an
approach that finds recognition in the Vienna Convention on the Law of Treaties
(VCLT), whose Article 31(3)(c), dealing with methods of interpretation, requires
States to consider ‘any relevant rules of international law applicable in the rela-
tions between the parties’.82 The underlying rationale for harmonization in this
sense appears to be that a conciliatory approach is possible as long as a way can be
found for a State and its agents to comply with the conditions that the two rules
impose.83 As a result, one norm may well condition the meaning of the other.
Among the emanations of harmonization, the mechanism of propor-
tionality must be considered to carry particular relevance in this context.
Proportionality is well established as one of the general principles to which
Article 38(1)(c) of the ICJ Statute makes reference84—​it fills the gaps of the

78 See Marko Milanovic, ‘Norm Conflict in International Law:  Whither Human Rights?’ 20
(2009) Duke J Comp & Int’l L 69, 71.
79  Study Group on Fragmentation, 25.
80  ibid 8, para 4; and see Milanovic (n 78) 73.
81 See Milanovic (n 78) 98 on the presumption against norm conflict in international law.
Harmonization derives its support from the practice of international courts—​see eg Al-​Adsani v
United Kingdom 2001-​XI, EurCtHR (2001) 79, para 55; Loizidou v Turkey, 310 EurCtHR (ser A)
(1995), para 43; Case Concerning Oil Platforms (Iran v United States of America) (Judgment) [2003]
ICJ Reports 161, 182, para 41. But the principle is also supported in the literature: cf Wilfred Jenks,
‘The Conflict of Law-​Making Treaties’, 30 (1953) BYIL 401, 427–​28. Sadat-​Akhavi had suggested
a similar non-​confrontational method which he termed the ‘reconciliation of norms’. In his view, a
differentiation between ‘interpretation’ and ‘reconciliation’ has to be made—​Seyed-​Ali Sadat-​Akhavi,
Methods of Resolving Conflicts between Treaties (Martinus Nijhoff, Leiden, Boston 2003) 25 et seq and
34 et seq. But the method of finding a way which reconciles apparently conflicting rules appears to be
the adoption of an understanding which allows co-​existence—​this, however, is a task of interpretation.
82  Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January
1980) 1155 UNTS 331, art 31(3)(c), and see on this Vassilis Tzevelekos, ‘The Use of Article 31(3)(c)
of the VCLT in the Case Law of the ECtHR: An Effective Anti-​Fragmentation Tool or a Selective
Loophole for the Reinforcement of Human Rights Teleology?’ 31 (2010) Michigan Journal of
International Law 621, 621, 624, 631, 644, with further references.
83  For a similar approach, see Sadat-​Akhavi (n 81) 34.
84  See on this Thomas M Franck, ‘On Proportionality of Countermeasures in International Law’
102 (2008) AJIL 715, 716; Riccardo P Mazzeschi, ‘Enzo Cannizzaro, Il principio della proporzionalità
 287

Resolving the Situation 287

law,85 and provides a default that applies unless States have specifically opted
for a deviating regulation. Its presence has thus been recognized in fields as
diverse as trade law and the use of force, human rights law, and the law of the
sea, but also in those instances of diplomatic law where the rule of non-​interfer-
ence meets with norms that permit the diplomatic conduct in question.86 For
problems stemming from the meeting of divergent norms, it provides a mech-
anism which avoids the often destructive consequences of confrontation while
at the same time appreciating the respective position of the affected interests.
The identification of the particular elements that constitute proportionality is
a more difficult task. On the basis of the tests which have been suggested in the
literature and in the courts as aspects of that principle,87 it is clear that proportion-
ality has to include at least the performance of a comparative analysis involving an
examination of the impact of the measure in question and the aim which it pur-
sues.88 There are two approaches to this examination that make frequent appear-
ances in case law and academic discourse: the test of the ‘least restrictive means’
and that of the ‘cost-​benefit analysis’.
The ‘least restrictive means test’ inquires whether, in a given situation, alterna-
tive measures had been available that would have achieved the same objective but
imposed less of a burden on the affected interest.89 Is it necessary to use a steam-
hammer when a nutcracker is available?90
There is indeed evidence of an awareness among members of the international
community and commentators on diplomatic law that a line has to be drawn
between conduct which is required in the pursuit of a legitimate interest and
activities that are in excess of that. Richtsteig, for instance, accepts the fact that
diplomatic missions must be able to engage in a public correction of views held
within the receiving State that affect interests of the sending State, but he limits
this option to acts that are ‘objectively necessary’ to achieve that.91 States them-
selves make reference to less intrusive alternatives when they highlight ‘appropriate
diplomatic procedures’ or ‘diplomatic channels’ which, in their minds, would have
been preferable to the means which the relevant diplomats had at times employed.

nell’ordinamento internazionale [The Principle of Proportionality in International Law, Giuffrè 2000]’

13 (2002) EJIL 1031, 1035 (with reference to Cannizzaro’s work).
85  Cf Mads Andenas and Stefan Zleptnig, ‘Proportionality: WTO Law: In Comparative Perspective’
42 (2007) Tex Int’l LJ 371, 404.
86  For the general applicability of proportionality in these fields, see Behrens (n 31) 226, 227.
87  See Behrens (n 9) 116.
88  For a more detailed analysis of the requirements of proportionality, see Behrens (n 31) 228–​30.
89  ibid 231–​32.
90  See Lord Diplock’s phrasing of that simile in R v Goldstein [1983] 1 WLR 151, 155.
91  Michael Richtsteig, Wiener Übereinkommen über diplomatische und konsularische Beziehungen.
Entstehungsgeschichte, Kommentierung, Praxis (Nomos, Baden-​ Baden 1994) 98. Bliščenko and
Durdenevskij argue in favour of the application of ‘tact and resolve’ where the image and interests of the
sending State are to be protected (‘Takt und Festigkeit’), Igor Pavlovič Bliščenko [Blischtschenko] and
Vsevolod Nikolaevich Durdenevskij [Durdenewski], Das Diplomaten-​und Konsularrecht (Staatsverlag
der Deutschen Demokratischen Republik, Berlin 1966) 181.
28

288 The Duty of Non-Interference

In the 2004 incident involving Edward Clay, the British High Commissioner
to Kenya, for instance,92 it was of some significance that the diplomat’s critical
remarks had been made at a meeting of the British Business Association in Kenya.93
His statements resulted in a summon by the Foreign Office of the receiving State
and a statement by the Kenyan Foreign Minister, who criticized him for ‘ignoring
diplomatic channels in making his views known’94—​a reference therefore to avail-
able alternatives at Clay’s disposal. Similar phrases have been used when diplomats
chose a public or semi-​public audience for statements which touched on sensitive
issues.95
The ‘least restrictive means test’ certainly offers a degree of protection to affected
interests in the receiving State. Yet it is also a powerful weapon in the hands of the
diplomat’s hosts. Less invasive alternatives can often be found: even if diplomats
talked directly with the host government, differentiations can be made: a diplomat
could have used oral communication instead of a note verbale,96 he could have
applied less pressure in his lobbying activities—​he might even have considered not
doing anything at all, but letting envoys of a third State present the case.
The difficulty of such restrictions is apparent when the fact is taken into account
that diplomatic representations may concern issues of great importance and
urgency—​such as the danger of the commission of international crimes in the
receiving State. In these situations, envoys who have to comply with such limita-
tions risk becoming the very caricature of their profession—​honourable gentlemen
who, to borrow a simile by Erich Kästner, attempt to solve the ‘paralysis of the
globe’ with camomile tea.97
But there is a corrective mechanism which imposes a cap on calls for less intru-
sive means: alternative measures must be at least of equal efficiency to achieve the
objective which the measure pursues. It is a condition which again finds its support
in various branches of international law.98

92  See text to n 14 above. 93  Barasa (n 14). 94  ibid (paraphrasing by Barasa).
95  See also, for an incident involving the US Ambassador to Mozambique in 1998, ‘US Ambassador
Accused of Meddling with Mozambican Internal Affairs’ Xinhua News Agency 15 September 1998;
‘International News’, Associated Press, 16 September 1998.
96  See on this Paul Behrens, ‘Diplomatic Communications, Forms of ’, in Rüdiger Wolfrum (ed),
Max Planck Encyclopedia of Public International Law (OUP, Oxford 2012).
97 Erich Kästner, ‘Fabian:  Die Geschichte eines Moralisten’, in Franz Josef Görtz (ed), Erich
Kästner. Werke, Band III, Romane I, (Munich, Vienna, Carl Hanser, 1998) 7, 31 (Malmy’s words).
98  See on this Andenas/​Zleptnig (n 85) 283, 389. For an application of this condition in trade
law, see European Communities—​Measures Affecting Asbestos and Asbestos-​Containing Products, WTO,
Appellate Body Report, AB-​2000-​11, WT/​DS135/​AB/​R (12 March 2001) (with reference to General
Agreement on Tariffs and Trade (opened for signature 30 October 1947, entry into force 1 January
1948) 55 UNTS 187, art XX(b)). In human rights law, cf C v Australia, para 8.2. The phrasing in
EU/​Community law tends to be less clear—​there, reference is often made to the fact that the choice
has to be between several ‘appropriate’ measures, Case C-​331/​88 The Queen v Minister for Agriculture,
Fisheries and Food and Secretary of State for Health, ex parte Fedesa [1990] ECR I-​4023, para 13; Case
C-​174/​05 Stichting Zuid-​Hollandse Milieufederatie and Stichting Natuur en Milieu v College voor de toe-
lating van bestrijdingsmiddelen [2006] ECR I-​2443, para 28. For an application of the requirement by
the EFTA court, see Re Finmark Family Allowance Supplement: EFTA Surveillance Authority v Norway
[2006] 2 CMLR 66, para 61.
 289

Resolving the Situation 289

And the question of equal efficiency is of considerable significance in vari-
ous cases in which diplomatic agents were accused of employing methods which
exceeded ‘appropriate means’. It played a role in the Clay incident as well. The
High Commissioner had a strong defence at his disposal: he had reportedly raised
the issue of corruption with the government of President Kibaki before;99 and
could thus be said to have exhausted the less intrusive venues which diplomatic
law provided to diplomats in these circumstances. Yet the incident also shows that
diplomatic conduct may have different facets, of which the selected forum is only
one. The fact that, in this incident, Clay had chosen a particularly forceful manner
to express himself, still gives room to the question whether such conduct had been
of the same efficiency as available alternatives—​or indeed carried any efficiency at
all.100
In considerations of proportionality, the ‘least restrictive means’ test is often
joined by another examination—​that of the ‘cost-​benefit analysis’.101 Cost-​benefit
analysis—​a test accepted in various branches of international law102—​calls for a
relationship of proportionality between the advantage gained (or expected to be
gained) and the negative effects that the measure generates. Is the benefit derived
from the opening of a nut worth the damage which the steamhammer will cause?
That is more than a mere comparison of competing interests:103 it is an ana-
lysis that explores the way in which the diplomatic activity has shaped them. That
means, on the one hand, the identification of the negative impact of the measure
on the affected interest and, on the other, the identification of the benefit which
the decision is expected to carry.104
What the analysis also includes is an understanding of the diplomatic measure
within the framework of its situational parameters. Issues such as the gravity of the
danger for the relevant interests, an existing urgency calling for diplomatic action
and the damage caused if no measure were taken, have, in this context, a significant
impact on the assessment. The combined weight of aspects like these may indeed
tip the scales in favour of the measure adopted by the diplomatic agent.
The case of the German Ambassador to Sierra Leone (Prinz) may be recalled
who, in 1993, was among diplomats accused by the Sierra Leonean Foreign
Minister of interference,105 after the envoys called for the release of five journalists

99  Barasa (n 14).

100  When talking about corruption in the government, Clay reportedly said that ‘[t]‌hey may expect
we shall not see, or notice, or will forgive them a bit of gluttony because they profess to like Oxfam
lunches, [but] they can hardly expect us not to care when their gluttony causes them to vomit all over
our shoes’. ibid.
101  Cf Andenas/​Zleptnig (n 85) 388. 102  Cf Behrens (n 31) 237.
103  But see Yves Sandoz, Christophe Swinarski, Bruno Zimmermann, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff, Geneva 1987)
392, art 35, para 1389, arguably supporting a different direction in international humanitarian law.
104  See on this Andenas/Zleptnig (n 85) 390 (arguing that the ‘effects of a measure’ must not be
‘disproportionate or excessive in relation to the interests affected’).
105  ‘Western Diplomats Accused of Interference’ BBC Summary of World Broadcasts (Agence France
Presse, France, 25 October 1993). ‘Sierra Leone Declares German Ambassador Persona Non Grata’
(Agence France Presse, 8 November 1993).
290

290 The Duty of Non-Interference

who had been arrested following their criticism of the military rule in that coun-
try.106 An assessment under cost-​benefit analysis would have to yield the result that
the objective of the diplomatic action—​the protection of freedom of expression
as a prerequisite for the right to self-​determination—​was recognized under inter-
national law107 and had come under immediate and grave threat. By comparison,
the diplomatic measures do not seem to have caused any disturbances in the receiv-
ing State (aside from irritation within the government); their impact was limited in
time and the negative effects, if any, would not have been irreversible.
There are of course cases in which the scales are heavier on the side of the costs
than on the side of the expected benefits. The last named aspect—​irreversibility of the
result—​plays a significant role in the weighing process; as does the extent of the damage
as well as foreseeable consequences which may arise through the measure in question.108
The above mentioned incident involving two British diplomats in Romania
(Michael Brown and Susan Laffey) in 1989 illustrates the fact that the consequences
of diplomatic measures can have a very tangible impact in the receiving State.109 In
December of that year, the two diplomats accompanied students and workers in their
march on the national television station.110 After the incident, Brown described how
they had joined the cheering of the crowds and shouted ‘[d]‌own with Ceaucescus’.111
He added that the diplomats ‘drove to the TV building and went through the fence
and walked through the forbidden zone and stormed the building with [the crowd]’,
before concluding, somewhat incongruously, that they had gone along as ‘fairly pas-
sive observers’.112
The incident triggered critical reactions even in the sending State where the
former British Ambassador Graham pointed out that ‘active participation, as dis-
tinct from observation, in the politics’ of the receiving State was ‘inconsistent’
with the status of a diplomatic agent.113 That appears to suggest that the relevant
conduct had been excessive in nature. Yet it might even have passed the first test
of proportionality in light of the function of observation:  standing passively at
the sidelines might have been less intrusive, but would not have promised the
same efficiency as marching with the protesters and obtaining a detailed view of
events.114

106  ‘Western Diplomats Accused of Interference’ (n 105).

107  On the importance of freedom of expression for the realization of the self-​determination of a
people, see text after n 67 above (with particular reference to journalists who have been singled out by
the regime of the receiving State). See also Western Sahara Opinion, 32, para 55.
108  The need to consider foreseeable consequences was inter alia claimed by several States in their
pleadings to the ICJ in the case concerning the legality of nuclear weapons. They noted that a pro-
portionality assessment, as required for the exercise of self-​defence, would also have to consider ‘the
high probability of an escalation of nuclear exchanges’, Legality of the Threat or Use of Nuclear Weapons
(Advisory Opinion) [1996] ICJ Rep 226, at para 43. While the Court did not wish to engage in a
‘quantification’ of such a danger, it found that the ‘profound risks’ associated with nuclear weapons
had to be borne in mind if States wanted to use them in accordance with the proportionality require-
ments of self-​defence. ibid.
109  See text to nn 21–​24 above. 110  White (n 21); Travis (n 22).
111  Stacey (n 24). 112 ibid. 113  Quoted in Denza (n 8), 378.
114  A spokesman of the British Foreign Office appeared to explain the need for direct participation
by noting that, if Brown had ‘not shown some degree of enthusiasm the crowd might have asked who
 291

Conclusion 291
The application of cost-​benefit analysis, however, is likely to show the situation
in a different light. The fact remains that the expected benefit of the diplomatic
action was not described by them as necessary assistance to human rights in grave
danger or in similarly dramatic terms. In view of the function of observation,
which Brown himself highlighted,115 it is difficult to ignore the fact that the rele-
vant events were also covered by independent observers on the same day,116 so that
the danger to the fulfilment of that task was significantly reduced. In light of the
considerable impact of the diplomatic action, it is difficult to see how cost-​benefit
analysis would yield a finding in the diplomats’ favour. It was, in fact, the classic
example of a grossly disproportionate action.
The mechanism of proportionality thus allows for the kind of assessment which
the blunt tool of the hierarchical approach denies. By its very nature, it involves
the application of fine distinctions and presupposes a precise understanding of
measures and interests, of the dangers and benefits that are to be expected.
It is true that such an approach imposes a burden on diplomatic agents in the
field. But its application is worth the effort. It serves not only to avoid normative
conflict: often enough, it will avoid political difficulties as well or will at least pre-
vent the exacerbation of an already problematic situation. Its true advantage lies in
the fact that it appreciates the right to existence of interests which are not only held
dear by both sides to the disagreement, but which find bases of equal and undeni-
able strength in the law of nations.

4. Conclusion

Diplomatic interference is only one of several fields affected by the absolute lan-
guage of the VCDR which, as a rule, does not reflect on the difficult question how
the respective rights and duties are meant to interact.117
In light of the fact that diplomats usually find themselves in a weaker position
by comparison to that of the government of the receiving State, and in light also of
the increased appreciation within the international community of the challenges
which the protection of human rights encounters in some receiving States, there
is a certain temptation to advocate a more robust view of diplomacy and to allow
diplomats greater discretion in that regard.
That position, however, would ignore the considerable impact which diplomatic
measures can have on affairs of the host country, and it disregards the fact that

he was. There were concerns in the crowd about the activities of the security forces’, Travis (n 22); and
see Stacey (n 24). In view of that, the argument can be advanced that a more passive stance might
not only have impeded observation activities, but endangered the persons of the diplomatic agents.
115  White (n 21).
116  See, for instance, ‘Romania: A Fleeing Dictator Reported Captured’ IPS –​Inter Press Service
(22 December 1989); Mort Rosenblum, ‘International News (Bucharest, Romania)’ Associated Press
(22 December 1989).
117  See on this Chapter 20.
29

292 The Duty of Non-Interference

some sending States are powerful political players who would not shy away from
allowing their diplomats to employ a range of intrusive means—​including the use
of financial support, intimidation, and propaganda—​to promote their interests.
Neither on the legal nor on the political level can it therefore be an appro-
priate approach to subordinate one of the affected interests to the other. What
is required, is the application of a mechanism that protects the concerns of the
receiving State while, at the same time, allowing diplomatic agents to pursue their
legitimate functions in the host country.
The discussion in this chapter has shown that the methods of harmonization—​
in particular the principle of proportionality—​are far better suited to this task than
confrontational approaches which tend to dismiss the value of legitimate objectives
and invariably induce destructive consequences.
Proportionality does involve exacting tests and may compel diplomatic
agents to examine the availability of less intrusive means and to understand the
consequences—​the blessings as well as the curses—​that can be expected from the
adoption of contentious measures. And yet, there are indications that this is in
many regards already part of diplomatic practice: such fine distinctions are com-
monly made where diplomats are, for instance, placed in the unenviable position
of having to lodge a complaint with the government of the receiving State.118
Yet situations of perceived interference can cause difficulties to host govern-
ments as well: beholden to their own constituencies as they are, they may often feel
the lure of taking harsh measures against diplomats thought to have meddled in
internal affairs, even where this may lead to a deterioration in the relations between
sending and receiving State.
It is suggested that the following considerations have an impact on situations
of this kind and are of relevance both to receiving States and diplomatic agents in
this particular context.
Firstly, the right to take measures and the need to take measures are differ-
ent things. Where diplomatic agents are concerned, this observation has already
been outlined above: an unnecessary act may not only lead to negative political
consequences, but to the legal assessment that a violation of the rule against inter-
ference had indeed come into being. But similar considerations apply to receiving
States: in many cases, it is only the fact that an enraged government made public
accusations of diplomatic meddling which elevated an entirely containable form
of diplomatic conduct to the level of a serious incident. Reactions of this kind are
neither conducive to good bilateral relations, nor can there ever be a guarantee that
the outcome of the dispute, even from the perspective of objective observers, will
favour the host government, which will often have shown itself as an overly sensi-
tive actor in international relations.
Secondly, where a perceived need to act exists, it is indispensable that the author
of the measures has sound knowledge of the factual and legal parameters that

118  See the example provided in Brian Barder, What Diplomats Do: The Life and Work of Diplomats
(Rowman & Littlefield, Lanham 2014) 51.
 293

Conclusion 293
inform the relevant situation. The factual parameters include the shape of the rele­
vant measures, the availability of alternatives, the existing danger to the affected
interest, and the likely negative consequences of the act. The legal parameters
include the grounds on which the relevant interests are based, which may stem
from an area quite different from diplomatic law (such as the norms of certain
human rights regimes). This, again, is a consideration which applies to diplomats
and their hosts alike: at times, legal norms outside diplomatic law (such as obliga-
tions to prevent certain forms of propaganda)119 may well add force to the receiv-
ing State’s position in situations of perceived interference.
Thirdly, a good understanding of the position taken by the international com-
munity in situations comparable to the one with which the receiving State and
the diplomatic agents are faced, is important both for the evaluation of customary
international law in the field and for the appreciation of possibilities which may
aid the position of the relevant international actor. A receiving State, for instance,
may find strong support within the international community for its view that the
use of insulting language by diplomatic agents violates the boundaries of permit-
ted conduct,120 but would find it difficult to base a blanket ban on any contact
with the opposition on broad consensus among independent States.121 In a similar
vein, the position taken by the agents of other States can be of decisive import-
ance for diplomats of a particular sending State: it is not only instrumental for the
evaluation of their past conduct, but may offer opportunities for the future. A dip-
lomatic agent who speaks out in defence of certain human rights in the receiving
State may, as a solitary voice, be easily dismissed and might even face severe criti-
cism by his hosts. A diplomat who manages to get his colleagues behind his views
and to construct a collective position, is a force to be reckoned with, and it will be
difficult for any receiving State to claim that conduct of this kind has no backing
by the international community.122
The phenomenon of diplomatic interference is an aspect of international rela-
tions to which receiving State from varying backgrounds assign, without doubt,
considerable importance. To diplomatic agents, the danger of such accusations
often means that a particular degree of caution in the making of representations,
especially on contentious issues, is indicated, and that the adoption of such meas-
ures may have to pass rigorous tests of self-​assessment.
But it does not mean that diplomatic action in these areas is outlawed, and it
does not mean that such measures should be discouraged.
For the fields that prove particularly fertile for controversy between sending and
receiving State, are often the ones that matter most to the people in the receiving

119  See on this Behrens (n 9) 171–​91. 120  ibid 211–​12, 220.

121  For the reactions which the government of Malta received when, in 1983, it sought to ban dip-
lomatic contacts with the main opposition party, see Alexander MacLeod, ‘Malta’s Democracy Is Cast
in Doubt’ Christian Science Monitor (1 March 1983), and Henry Kamm, ‘Malta Takes on the World
in Diplomatic War’ New York Times (20 February 1983).
122  See eg an 2011 initiative by twenty Ambassadors accredited to Slovakia, to support the LGBT
Pride March in that country, ‘LGBT Police Readied For March’ Slovak Spectator (6 June 2011), and
‘Pride Diplomats React’ Slovak Spectator (13 June 2011).
294

294 The Duty of Non-Interference

States. They are areas marked by the suppression of freedom of speech, by the
denial of the right to self-​determination, by the threat of the commission of inter-
national crimes.
Diplomatic comment on any of these topics may well raise objections by the
host government—​it would be surprising if it did not. Yet to the people in the
receiving State, such action presents itself in a very different light.
For these are comments made by persons to whom governments might listen
even if they have stopped listening to their own people. The very reason that they
irk the leaders of States lies in the fact that their authors are not without influence.
To the protection of human rights, the importance of these measures is inestim-
able: they give hope where hope is dearly required, and they draw the attention of
the international community to the situation on the ground. Within the receiving
State itself, human rights will often have no other defender of equal authority.
 295

Part VI
Beyond the VCDR
296
 297

17
Intersections between Diplomatic Immunities
and the Immunities of International
Organizations
Alison Duxbury*

Diplomatic missions and international organizations, as well as their agents and

officials, are entitled to privileges and immunities pursuant to international law.
These privileges and immunities have different rationales, but use the common
underpinning concept of functional necessity—​the idea that immunity is granted
in order to enable an entity or individual to fulfil designated functions.1 Discussion
of the privileges and immunities of international organizations and their officials
at the ILC followed the reports on the privileges and immunities of diplomatic
agents and State representatives of international organizations. The subjects of
international immunities are frequently grouped together, as is evidenced by the
discussion of allegations of sexual assault against Dominique Strauss-​Kahn, the
former Managing Director of the International Monetary Fund (IMF), where the
language used frequently invoked the terminology of diplomatic immunity rather
than the immunity of an official of an international organization.2 Indeed, given
the nature of Strauss-​Kahn’s submissions, the Supreme Court of New  York dis-
cussed various articles of the VCDR in the context of Strauss-​Kahn’s claim that he

*  The author thanks Grace Duncan and Anna Saunders for their research assistance in preparing
this chapter.
1  For example, the Preamble of the Convention on the Privileges and Immunities of the United
Nations (opened for signature 13 February 1946, entered into force 14 December 1946) 1 UNTS 15
(General Convention) provides that ‘the Organization shall enjoy in the territory of each of its Members
such privileges and immunities as are necessary for the fulfilment of its purposes’. Representatives of
States and officials ‘shall similarly enjoy such privileges and immunities as are necessary for the inde-
pendent exercise of their functions in connection with the Organization’. The Preamble to the VCDR
provides that the purpose of privileges and immunities ‘is not to benefit individuals but to ensure the
efficient performance of the functions of diplomatic missions’.
2  For example, ‘Dominique Strauss-​Kahn Tried to Claim Diplomatic Immunity’ The Guardian
(London, 17 June 2011) <https://​www.theguardian.com/​world/​2011/​jun/​17/​dominique-​strauss-​
khan-​diplomatic-​immunity> accessed 22 June 2016; Russ Buettner, ‘Judge in Civil Case Rejects
Immunity for Strauss-​Kahn’ The New York Times (1 May 2012) <http://​www.nytimes.com/​2012/​05/​
02/​nyregion/​strauss-​kahns-​claim-​of-​diplomatic-​immunity-​is-​rejected.html> accessed 22 June 2016.

Intersections between Diplomatic Immunities and the Immunities of International Organizations. Alison
Duxbury. © Alison Duxbury, 2017. Published 2017 by Oxford University Press.
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298 Diplomatic Immunities and Immunities of International Organizations

was entitled to absolute immunity against civil liability as a result of his position
in the IMF.3
While the law of diplomatic immunity is based on customary international
law, the VCDR and national legislation, by contrast the legal status, privileges,
and immunities of international organizations are governed by a range of different
international treaties, including the Charter of the United Nations4 and the con-
stituent instruments of other international organizations,5 specific treaties such as
the Convention on the Privileges and Immunities of the United Nations (‘General
Convention’) and its twin relating to the specialized agencies (‘Specialized Agencies
Convention’),6 and host State agreements.7 The provisions of these treaties are
often implemented through national legislation. Even this description leaves aside
the complex body of law relating to UN peace operations and the immunities
provided in Status of Force Agreements for members of the armed forces on UN
and other operations.8
This wide range of sources obscures the fact that diplomatic immunity and the
immunity of international organizations are both based on the concept of func-
tional necessity.9 Nevertheless, there are significant differences in the way in which
functional necessity is interpreted and applied—​the most obvious distinction
being that while diplomatic agents enjoy complete immunity from the criminal
and civil jurisdiction of the courts of the receiving State (with a few exceptions),10
for the most part officials of international organizations only enjoy immunity for
acts performed in their official capacity.11 Treaty articles provide for the inviolabil-
ity of international organizations and also their immunity from the jurisdiction of
national courts.12 Diplomatic missions are also inviolable,13 but their immunity
from the jurisdiction of the courts of the receiving State is governed by the law

3  Diallo v Strauss-​Kahn, No 307065/​11, 2012 WL1533179 (NYSup May 1, 2012) 11–​12.

4  Charter of the United Nations art 105.
5  See eg Charter of the Association of Southeast Asian Nations (opened for signature 18 November
2007, entered into force 15 December 2008) art 17; Charter of the Organization of American States
(opened for signature 30 April 1948, entered into force 13 December 1951)  119 UNTS 47 arts
133–​134; Constitution of the International Labour Organization, Part XIII of the Treaty of Versailles
(opened for signature 28 June 1919, entered into force 10 January 1920) art 40.
6  General Convention (n 1 above); Convention on the Privileges and Immunities of the Specialized
Agencies (opened for signature 21 November 1947, entered into force 2 December 1928) 33 UNTS
261 (Specialized Agencies Convention).
7  For example, the Agreement Between the International Committee of the Red Cross and the
Swiss Federal Council to Determine the Legal Status of the Committee in Switzerland (19 March
1993); Agreement Between the United Nations and the United States Regarding the Headquarters of
the United Nations (26 June 1947).
8  For a discussion of immunities in this context see Roisin Burke, ‘Status of Forces Deployed on
UN Peacekeeping Operations: Jurisdictional Immunity’ (2011) 16 JC&SL 63.
9  For a brief discussion of earlier theories explaining the grant of diplomatic immunities (extraterri-
toriality and representative character) see Kuljit Ahluwalia, The Legal Status, Privileges and Immunities
of the Specialized Agencies of the United Nations and Certain Other International Organizations
(Springer, 1964) 34. See also discussion at the ILC: ‘Diplomatic Intercourse and Immunities’ ILC
Yearbook 1957 vol I, 2–​4.
10  VCDR art 31(1). 11  For example, General Convention (n 1 above) art V s 18(a).
12  ibid art II, ss 2 and 3. 13  VCDR art 22(1).
 29

Diplomatic Immunities and Immunities of International Organizations 299

of State immunity, which has been subject to a number of exceptions in recent

years.14 Increasingly there have been calls by commentators for the immunity
of international organizations and their officials or employees to be restricted or
waived.15 More fundamentally, the concept of functionalism as the underpinning
theory of the law of international organizations has also been criticized for its fail-
ure to deal with the relationship between organizations and third parties who may
have been adversely affected by their actions.16 Such discussions have been preva-
lent when it has been claimed that an organization has breached a human rights
obligation. This is exemplified by Mothers of Srebrenica et al v The Netherlands and
the United Nations, when a foundation representing the relatives of those killed
in the Srebrenica massacre brought an action against the United Nations and the
Netherlands claiming they were responsible for failing to prevent genocide.17
The purpose of this chapter is not to analyse either the immunity of inter-
national organizations and their officials or diplomatic immunity in detail. There
are many separate analyses of the two types of immunity, including a comparative
study of both published in 1976.18 Instead, the focus is on situations where the
immunities have intersected; in particular, where work on the immunities of one
type of international person (diplomats) has influenced the granting of immu-
nity to the other (officials of an international organization). Given that diplomatic
immunity preceded the immunity of international organizations, it would seem
logical that diplomatic immunity influenced the application of immunities to the
officials of international organizations. Chanaka Wickremasinghe has written that
‘[b]‌oth diplomatic immunities and the immunities of international organizations
arise from considerations of functional necessity, and . . . the former have inspired
the latter in some respects’.19 It is certainly true that diplomatic immunities have
inspired the immunities of international organizations, but the situation is more
nuanced than a direct application of the immunity of one type of international
person to the other.
The chapter will begin by highlighting the issues raised during the adoption of
Article 7 of the Covenant of the League of Nations and Article 105 of the Charter
of the United Nations. It will then move to the work of the ILC. Although it was

14 The interaction between the diplomatic immunity and sovereign immunity is discussed in
Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th
edn, OUP, Oxford 2008) 126–​28. The application of State immunity in the context of employment
disputes involving staff at diplomatic missions is discussed below at section 2.2.
15 For example, Kibrom Tesfagabir, ‘The State of Functional Immunity of International
Organizations and Their Officials and Why It Should be Streamlined’ (2011) 10 CJIL 97.
16  Jan Klabbers, ‘The Transformation of International Organizations Law’ (2015) 26 EJIL 9.
17  Mothers of Srebrenica et al v State of the Netherlands and the United Nations (No 10/​04437, 13
April 2012, Supreme Court of the Netherlands). See also Stichting Mothers of Srebrenica v Netherlands
(App No 65542/​12) ECHR 11 June 2013.
18 Yu-​Long Ling, ‘A Comparative Study of the Privileges and Immunities of United Nations
Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic
Agents’ (1976) 33 W&L 91.
19 Chanaka Wickremasinghe, ‘Immunities Enjoyed by Officials of States and International
Organizations’ in Malcolm D Evans (ed), International Law (4th edn, OUP, Oxford 2010) 399.
30

300 Diplomatic Immunities and Immunities of International Organizations

suggested as early as 1957 by a member of the ILC that it was logical that the
officials of international organizations be included in a codification of diplomatic
immunity,20 it was decided that the relations between States and intergovernmen-
tal organizations would be considered after the study of diplomatic privileges and
immunities.21 The focus will then turn to the extent to which domestic case law
discussing the immunities of international organizations and their officials has
referred to analogous immunities for diplomatic agents. There are a number of
reasons as to why the VCDR and diplomatic immunities may be cited in cases
concerning the immunities of international organizations and their officials, not
least the express mention of the VCDR in treaties and national legislation dealing
with the immunities of international officials. However, differences between the
immunities have sometimes led to confusion in domestic courts about the precise
ambit of the immunities of international organizations. A  more complex inter-
action between international immunities and diplomatic immunity is evidenced
in the case law on human rights, in particular the right of access to the courts
embodied in Article 6 of the European Convention on Human Rights. This group
of cases demonstrates that developments in the immunity of international organi-
zations have paved the way for similar arguments in cases concerning diplomatic
missions.

1.  The Role of Diplomatic Immunity in Developing

the Immunities of International Organizations

1.1 The League of Nations and United Nations

In comparison with the law relating to diplomatic privileges and immunity, the
law surrounding the privileges and immunities of international organizations is
relatively recent. Malcolm Shaw describes the law of diplomatic relations as ‘one
of the earliest expressions of international law’,22 while Eileen Denza in her com-
mentary on the VCDR writes that the ‘rules protecting the sanctity of ambassadors
and enabling them to carry out their functions are the oldest established and the
most fundamental rules of international law’.23 Such an ancient lineage cannot be
claimed for the immunities of officials of international organizations—​although
in 1947 Josef Kunz stated that ‘[t]‌he problem [of the privileges and immunities of
international organizations] is not quite as new as it is sometimes supposed to be’.24
It is therefore not surprising that the language of diplomatic immunity is incorpo-
rated into the terminology associated with the newer concept of the immunities

20  ‘Diplomatic Intercourse and Immunities’ ILC Yearbook 1957 vol I, 3–​4 (comments by García
Amador, 383rd Meeting, 24 April 1957).
21  ‘Relations between States and Inter-​Governmental Organizations’ UNGA Res 1289 (XIII) (5
December 1958).
22  Malcolm Shaw, International Law (7th edn, CUP, Cambridge 2014) 545.
23  Denza (n 14) 1.
24  Josef L Kunz, ‘Privileges and Immunities of International Organizations’ (1947) 41 AJIL 828.
 301

Development of International Immunities 301

of international organizations. For example, when discussing the immunities of

‘agents’ of international organizations in 1935, Jacques Secretan highlighted a
number of treaty provisions dating back to the nineteenth century ‘designed to
secure the independence of the agents of the international community in regard
to territorial authorities, more especially by extending to such agents the treat-
ment described as “diplomatic privileges and immunities”, or similar guarantees.’25
The need to secure the ‘independence’ and ‘neutrality’ of agents of international
organizations was a key feature of some of these early provisions.26 Despite the
similarities between diplomats and agents of international organizations, Secretan
also recognized that the issues faced by the two types of international person were
not the same: for example, agents of organizations may require protection from
their own State in a situation where States are often reluctant to grant diplomatic
privileges to their own nationals.27 The difficulties that international officials may
face in being required to work in a number of different countries, including their
own, has subsequently been highlighted by other commentators.28
The Covenant of the League of Nations confirmed the link between immunity
of diplomatic premises and persons and international organizations, State repre-
sentatives, and international officials, by explicitly adopting the language of dip-
lomatic immunity. Article 7 provided that the buildings occupied by the League
shall be ‘inviolable’ and that representatives of members of the League and its offi-
cials ‘when engaged on the business of the League shall enjoy diplomatic privileges
and immunities’.29 Earlier drafts of this provision at the Commission on League of
Nations appeared to uphold the territorial theory for such privileges and immuni-
ties, in providing that League buildings ‘shall enjoy the benefits of extraterritori-
ality’.30 However, the term was omitted from the final draft at the suggestion of
Larnaude who believed the term ‘inviolable’ was more accurate.31 Despite the use
of the term ‘diplomatic’ in Article 7 it was clear that there were differences between
the immunity of officials and diplomats in the Covenant—​most notably, the
immunity of officials and State representatives of international organizations was
limited to situations when a person was ‘engaged in the business of the League’.

25  Jacques Secretan, ‘The Independence Granted to Agents of the International Community in
their Relations with National Public Authorities’ (1935) 26 BYBIL 56.
26  See eg Kunz and Secretan’s discussion of the provisions in various treaties governing the Central
Commission for the Navigation of the Rhine and the European Danube Commission: Secretan (n 25)
59–​62; Kunz (n 24) 828–​29.
27  Secretan (n 25) 65.
28  Martin Hill, Immunities and Privileges and International Officials –​The Experience of the League of
Nations (Washington DC, Carnegie Endowment for International Peace 1947) 8–​9; C Wilfred Jenks,
International Immunities (London, Stevens and Sons 1961) xxxvii.
29  Covenant of the League of Nations, Part I of the Treaty of Versailles art 7.
30  See ‘Amalgamation of Wilson’s Second Paris Draft and British Draft Suggested by Lord Eustace
Percy’ art IV, ‘Cecil-​Miller Draft, January 17, 1919’ art II-​A, and ‘Text Agreed on by Wilson and
Cecil, March 18, 1919’ art VI in David Hunter Miller, The Drafting of the Covenant (GP Putman’s
Sons 1928) vol II, 121, 133, and 582.
31  ‘Eleventh Meeting of the Commission’ in Miller (n 30) vol I, 317. In 1947, Kunz described
extraterritoriality as a basis for diplomatic privileges and immunities as ‘an untenable fiction’: Kunz
(n 24) 837.
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302 Diplomatic Immunities and Immunities of International Organizations

The privileges and immunities of the League were subsequently elaborated in
a letter from the Swiss Federal Council to the Secretary General of the League.
The staff of the Secretariat and the International Labour Office (with the same
status as ‘public officials’) were accorded the privileges and immunities of diplo-
mats. Other staff enjoyed more limited immunity.32 Consequently, a division was
drawn between different levels of staff; with one level enjoying inviolability and
full immunity from civil and criminal jurisdiction, whereas the other was granted
immunity for acts performed in their official capacity. This distinction has been
maintained in many subsequent treaties, including the General Convention.33
C Wilfred Jenks described the grant of immunity in the Covenant as general in
character and believed that ‘the use of the concept of diplomatic immunities for the
purpose of defining international immunities furnish[ed] no answer to the novel
questions which arise in connection with international organizations and their
officials’.34 This was acknowledged by a Committee established by the Council of
the League of Nations to consider international law topics suitable for codifica-
tion. In 1927 it expressed the view that due to differences between diplomats and
League officials the privileges and immunities should not be identical.35
During the drafting of the Charter of the United Nations at the San Francisco
Conference, privileges and immunities were discussed in Committee 2 of the
Commission on Judicial Organization. When the item was introduced for dis-
cussion, the Canadian representative hinged a suggested text on the importance
of ensuring the independence of the Organization and proposed the adoption of a
treaty by the General Assembly on the topic.36 The Mexican representative expli-
citly referred to diplomatic privileges and immunities for delegates to the Council
and the Assembly, but qualified the grant of such privileges and immunities to mat-
ters within the delegates’ duties.37 According to the Mexican draft, some officials
of the Secretariat would also enjoy such ‘diplomatic privileges and immunities’.38
A more detailed Charter provision was proposed by Belgium—​State representa-
tives would be entitled ‘in the exercise of their duties, to the immunities granted to
diplomatic officials’ as would the Secretary-​General and other high level officials.
According to this proposal, other officials would be ‘entitled to immunity from

32 See The Provisional ‘Modus Vivendi’ of 1921 with the Swiss Federal Council –​Letter of July 19,
1921, from the Head of the Federal Political Department to the Secretary-​General of the League of Nations,
‘I. Staff ’ reproduced in Hill (n 28) 121–​27. This agreement divided the staff into two categories: staff
in the first category were accorded broad immunities, including inviolability and immunity from civil
and criminal jurisdiction. Staff in the second category (comprising the technical and manual staff )
enjoyed ‘complete immunity in respect of acts performed by them in their official capacity and within
the limits of their duties’. However, they would be ‘subject to local laws and jurisdiction in respect of
acts performed by them in their private capacity’.
33  General Convention (n 1 above) art V. 34  Jenks (n 28) 1.
35  League of Nations, Committee of Experts for the Progressive Codification of International Law,
Report to the Council of the League of Nations on the Questions Which Appear Ripe for International
Regulation (1927) cited in ILC Yearbook 1977 vol II(1), 143.
36  ‘Documentation for Meetings of Committee IV/​2: Privileges and Immunities’ (1945) 13 United
Nations Conference on International Organization 727.
37 ibid 728. 38  ibid 728.
 30

Development of International Immunities 303

legal proceedings with regard to acts performed in the exercise of their duties.’39
However, the subcommittee appointed to draft the provision stated that it
… has seen fit to avoid the term ‘diplomatic’ and has preferred to substitute a more appro-
priate standard, based . . . on the necessity of realising [the UN’s] purposes and, in the case
of the representatives of its members and the officials of the Organization, on providing for
the independent exercise of their functions.40
As a result, the standard for immunities in Article 105 of the Charter emphasizes
that the UN’s immunities are necessary ‘for the fulfilment of its purposes’ and that
the immunities granted to representatives of members and UN officials are linked
to ‘the independent exercise of their functions’.41
Although the Committee which drafted Article 105 moved away from the lan-
guage of diplomatic immunities, the terminology is again found in the General
Convention. The sub-​committee of the Legal Committee at the Preparatory
Commission of the United Nations established to draft this Convention in 1945
emphasised the rationale of functional necessity in the Preamble and provided for
the absolute immunity of the UN ‘from any form of judicial process’ as well as the
inviolability of its property and assets.42 It maintained the concept of restricted
immunity for the majority of UN officials in providing that ‘[a]‌ll officials of the
Organization shall: (a) be immune from legal process with respect to acts per-
formed by them in their official capacity’.43 However, the draft Convention used
the language of broader diplomatic immunities in a number of provisions, includ-
ing when discussing the privileges and immunities to be given to the Secretary-​
General, Assistant Secretaries-​General and ‘their wives and infant children’.44
Analogies with diplomatic privileges and immunities were utilized at other points
in the draft Convention; for example, when discussing UN communications45 and
the privileges and immunities of State representatives to the organization.46 The
draft Convention also attempted to deal with a problem unique to international
organizations; that is, the ‘jurisdictional gap’ created by the grant of immunity.
Although diplomats are immune from the jurisdiction of courts of a receiv-
ing State, they are not immune from the jurisdiction of the sending State.47 As
there is no equivalent jurisdiction for international organizations, a dispute reso-
lution procedure (or a waiver of immunity) is needed.48 Consequently, the draft
Convention enabled the Secretary-​General to waive the immunity of officials49

39  ibid 730 (supplement).

40  ‘Privileges and Immunities: Report Submitted by Subcommittee to Committee IV/​2’ (1945)
13 United Nations Conference on International Organization 778, 779. The necessity of differentiating
between the privileges and immunities accorded to diplomats and those granted to officials of inter-
national organizations had been recognized earlier: see discussion in Kunz (n 24) 841.
41  Charter of the United Nations art 105.
42  Preparatory Commission of the United Nations, Committee 5, Sub-​Committee on Privileges
& Immunities, ‘Draft Convention on Privileges and Immunities’ (8 December 1945) UN Doc PC/​
LEG/​34 (‘Draft Convention on Privileges and Immunities’) preamble and arts 2(1)–​(2).
43  ibid art 6(1)(a). 44  ibid art 6(2). 45  ibid art III(9), (10).
46  ibid art IV. 47  This principle has been codified in VCDR art 31(4).
48  Jenks (n 28) xxxvii. 49  Draft Convention on Privileges and Immunities art 8(1).
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304 Diplomatic Immunities and Immunities of International Organizations

and provided that the UN ‘shall’ make provision for the resolution of disputes of a
contractual or private law character, or where an official has immunity.50 The final
Convention adopted in 1946 was closely modelled on the draft that was settled at
the Preparatory Commission, with the major issues raised by members of the Sixth
Committee of the United Nations being concerned with the exemption of officials
from taxation and the exemption from national service obligations.51

1.2 Discussions at the International Law Commission

Although the ILC discussed diplomatic intercourse and immunities separately
from the immunities of international organizations, the interaction between the
two types of immunities was briefly raised during ILC discussions on the first topic.
Following the Reparations Case,52 with its acknowledgement of the international
legal personality of the United Nations, in 1957 it was suggested that it was logical
that the officials of international organizations be included in a codification of
diplomatic immunity.53 The particular position of government representatives to
international organizations (as distinct from the staff members of such organiza-
tions) was highlighted with a question being raised as to whether they should
be treated in the same way as diplomatic agents accredited to States.54 In 1958,
when discussing the draft articles concerning diplomatic privileges and immuni-
ties, Switzerland stressed the importance of the relationship between the work of
the ILC on diplomatic intercourse and immunities and the ‘effects which this con-
vention is bound to have on other branches of law which are yet to be codified’.55
This was of particular importance to Switzerland given its view that the rules gov-
erning privileges and immunities should be applied to international organizations
situated in its territory mutatis mutandis.56 The United States was also of the view
that the treatment accorded to permanent diplomatic missions would impact on
the ‘treatment accorded representatives to certain international organizations and

50  ibid art 8, s 3. In the final text of the General Convention, this provision is located in art 8 s 29.
This section has recently been the subject of argument in an action brought by Haitians against the
UN arguing that the UN is responsible for the cholera epidemic that broke out in Haiti in 2010. In
the US District Court the plaintiffs argued that the UN’s failure to provide for an alternative mode
of settlement breached the organization’s obligations under section 29 of the General Convention as
a result of which it could not benefit from absolute immunity. This argument was rejected by a US
judge who dismissed the claims: Georges v United Nations, No 13–​CV–​7146 JPO, 2015 WL 129657
(SDNY January 9, 2015). This decision was affirmed on appeal: Georges v United Nations (2nd Cir,
No 15-​455-​cv, 18 August 2016).
51  Sixth Committee of the General Assembly, ‘Legal Questions: Summary Record of Meeting’ (8
February 1946) UN Doc A/​C 6/​37.
52  Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949]
ICJ Rep 174.
53  See n 20 above.
54  ‘Diplomatic Intercourse and Immunities’ ILC Yearbook 1957 vol I, 4–​5 [35].
55  ‘Comments by Governments on the Draft Articles Concerning Diplomatic Intercourse and
Immunities Adopted By the International Law Commission at Its Ninth Session in 1957’ ILC
Yearbook 1958 vol II, 111, 128.
56 ibid.
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Development of International Immunities 305

members of their staffs’ given the relationship between the two types of personnel
in its Headquarters agreement with the UN.57 Thus, despite the fact that the ques-
tion of the relations between States and intergovernmental organizations would
be considered after the study of diplomatic privileges and immunities, there was
an early acknowledgement that the work on diplomatic privileges and immunities
would influence later work on international organizations.

1.3 State representatives to international organizations

When the topic of the relations between states and intergovernmental organi-
zations was placed on the agenda of the ILC it was divided into two separate
parts:  the first dealt with the status, privileges, and immunities of State repre-
sentatives to international organizations, and the second related to the privileges
and immunities of international organizations and their officials.58 While this
chapter will focus on the second part of the ILC’s work, it is noteworthy that
in the consolidated draft articles adopted in 1971 and presented to the General
Assembly on the first topic (dealing with State representatives to organizations),
broad immunities were outlined with the provisions being expressly modelled on
the VCDR.59 The final version of the Vienna Convention on the Representation of
States in their Relations with International Organizations of a Universal Character
included references to the inviolability of the premises of a State’s mission to an
international organization, the residence of the head of the mission and the mis-
sion’s archives and documents.60 The Convention also applied to State delegations
to organs and conferences of international organizations.61 Freedom of movement
for members of the mission and their families in the territory of the host State was
protected, as was immunity from criminal and civil jurisdiction for the head of the

57 ibid 133.
58  The Special Rapporteur, Abdullah El-​Erian, initially proposed that the topic of the privileges
and immunities of international organizations be divided into three parts: the first would deal with
the privileges and immunities of international organizations as bodies corporate, the second would
cover officials of international organizations, and the third aspect would deal with representatives to
international organization and other related questions: see ‘Scope and Order of Future Work on the
Subject of Relations between States and Inter-​Governmental Organizations: Working Paper by Mr
Abdullah El-​Erian, Special Rapporteur’ ILC Yearbook 1963 vol II, 186.
59  The similarities (and differences) between diplomatic agents and State representatives to inter-
national organizations were raised on a number of occasions during the discussions surrounding the
draft provisions. See, for example, the ILC’s discussion of the Special Rapporteur’s draft articles: ILC
Yearbook 1971 vol I, 14 (Ustor and Ruda on the functions of a permanent mission to an international
organization), 15–​19 (El-​Erian, Ustor, Sette Câmara, and Ruda discussing suggested changes to draft
article 8 on accreditation to two or more organizations), 21 (Rosenne discussing appointment of
members of a permanent mission), 29 (El-​Erian discussing the draft provision dealing with the com-
position of a permanent mission), 30–​1 (El-​Erian on notification by the sending State), and 39–​42
(discussing the inviolability of a permanent mission).
60 Vienna Convention on the Representation of States in their Relations with International
Organizations of a Universal Character (opened for signature 14 March 1975, not yet in force, UN
Doc A/​CONF 67/​16) arts 23 (mission), 25 (archives and documents), and 29 (residence of head of
mission and permanent diplomatic staff ).
61  ibid Part III.
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306 Diplomatic Immunities and Immunities of International Organizations

mission and members of the diplomatic staff of the mission to the same extent as
granted to diplomats by virtue of the VCDR.62 The discussion at the ILC dem-
onstrates that the earlier provisions on diplomatic privileges and immunities were
very influential—​representatives of States to international organizations were con-
sidered in many respects to be virtually identical to diplomats.63 This view is con-
firmed by a statement of the Legal Counsel of the UN to the Sixth Committee of
the General Assembly in 1967 to the effect that the Secretary-​General would look
to the provisions of the VCDR, where relevant, when interpreting the diplomatic
privileges and immunities of representatives to UN organs and conferences.64
Despite the fact that the articles on State representatives replicated the VCDR
in many respects and therefore may have been considered relatively unproblem-
atic, when the United Nations Conference met in 1975 to consider the adoption
of a Convention on the topic, the idea of granting broad diplomatic privileges and
immunities to State representatives to international organizations was not uncon-
troversial. For example, the final draft of the Convention does not include an
article on the inviolability of premises of delegations to an organ or conference
of an international organization as it was blocked by a number of host States.65
The application of high level privileges and immunities in the VCDR to State
representatives to international organizations (as distinct from the more limited
immunities granted on the basis of an organization’s functions) was criticized by
some States.66 Although the text was approved, to date the Convention is not yet
in force. Bekker comments that the fact that States were ‘unenthusiastic’ about the
1975 Vienna Convention had an adverse effect on the subsequent work of the ILC
on the second part of the topic dealing with the status, privileges, and immunities
of international organizations and their agents.67

1.4 International organizations and their officials

Given the obvious influence of the VCDR in drafting the provisions of the 1975
Vienna Convention on State representatives to international organizations, it
would seem reasonable to suggest that a similar influence would be apparent when
dealing with the second part of the topic. However, references to the VCDR in
the earlier years of the ILC’s work on this topic were rare. The ILC began its work
on the status, privileges, and immunities of international organizations and their

62  ibid arts 26 (freedom of movement), 28 (personal inviolability), 30 (immunity from jurisdiction).
63  See comments by JG Fennessy, ‘The 1975 Vienna Convention on the Representation of States
in their Relations with International Organizations of a Universal Character’ (1976) 70 AJIL 62, 64.
64  ‘Statement Made by the Legal Counsel at the 1016th Meeting of the Sixth Committee of the
General Assembly on 6 December 1967’ [1967] UNJY 311–​12.
65  United Nations Conference on the Representation of States in Their Relations with International
Organizations, ‘Seventh Plenary Meeting: Summary Record’ (11 March 1975) UN Doc A/​CONF
67/​SR 7, 26.
66  See Fennessy (n 63) 63–​64.
67  Pieter HF Bekker, The Legal Position of Intergovernmental Organizations: A Functional Necessity
Analysis of Their Legal Status and Immunities (Brill Nijhoff, Dordrecht 1994) 23.
 307

Development of International Immunities 307

officials with a preliminary report by the first Special Rapporteur, submitted to the
ILC in 1977, analysing the current state of the law of privileges and immunities of
international organizations.68 Despite comparisons being drawn between relations
amongst States on the one hand and international intercourse in the framework
of international organizations on the other,69 the VCDR is only mentioned in the
conclusion of the ILC’s preliminary analysis. It was noted that the ILC’s work in
this area would complete the body of work on the codification and the develop-
ment of this branch of diplomatic law.70 This desire to complete the codification
of the rules on diplomatic law was mentioned subsequently,71 although it was also
clear that the two bodies of law were not the same.
During the late 1980s and early 1990s, provisions of the VCDR and the prin-
ciples of diplomatic immunity were specifically referenced in the discussions of
the ILC on the privileges and immunities of international organizations on a few
occasions. ILC members noted the similarities and differences between the pos-
ition of diplomats and international officials. For example, in a 1987 meeting one
ILC member highlighted that in traditional diplomacy the relationship between a
sending State and a receiving State was based on sovereign equality and the prin-
ciple of reciprocity, which could also serve as a mechanism for legal protection.
However, this mechanism of protection did not apply in relation to international
organizations where the position was somewhat more complex given the triangular
relationship ‘sometimes established between the sending State, the host State and
an international organization’.72
In terms of the individual draft articles on the privileges and immunities of
international organizations, analogies with the VCDR appeared in the reports of
the second Special Rapporteur, Leo Díaz González, when discussing certain topics.
In his later reports, containing the proposed draft articles, the Special Rapporteur
used the VCDR as a foundation for drafting articles on the inviolability of an
international organization’s premises (stating that this was identical to Article
22(1) of the VCDR, despite the different theoretical bases for such inviolability)73

68  ‘Preliminary Report on the Second Part of the Topic of Relations between States and International
Organizations by Mr Abdullah El-​Erian, Special Rapporteur’ ILC Yearbook 1977 vol II Pt 1, 139.
69 ibid 152.
70 ibid 154. See also comments by Sette Câmara in the ILC when discussing the prelimin-
ary report:  ‘Preliminary Report on the Second Part of the Topic of Relations between States and
International Organizations’ ILC Yearbook 1977 vol I, [23]–​[24].
71  ‘Second Report on the Second Part of the Topic of Relations between States and International
Organizations’ ILC Yearbook 1978 vol II Pt 1, 263; ‘Relations between States and International
Organizations (Second Part of the Topic)’ ILC Yearbook 1983 vol I, 238 (Flitan); ‘Third Report on
Relations between States and International Organizations (Second Part of the Topic)’ ILC Yearbook
1986 vol II Pt 1, 163, 168; ‘Relations between States and International Organizations (Second Part of
the Topic)’ ILC Yearbook 1987 vol I, 188, 190 (Pawlak).
72 ‘Relations between States and International Organizations (Second Part of the Topic)’ ILC
Yearbook 1987 vol I, 188, 192 (Yankov). On the tripartite relationship, see also ‘Preliminary Report
on the Second Part of the Topic of Relations between States and International Organizations by Mr
Abdullah El-​Erian, Special Rapporteur’ ILC Yearbook 1977 vol II Pt 1, 152.
73  ‘Fourth Report on the Relations between States and International Organizations (Second Part
of the Topic)’ ILC Yearbook 1989 vol II(1), 164. The Special Rapporteur commented that the inviol-
ability of the premises of a diplomatic mission is based on the principle of reciprocity between States,
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308 Diplomatic Immunities and Immunities of International Organizations

and the inviolability of archives and documents.74 When outlining draft articles
on the inviolability of communications and the means for such communications,
the Special Rapporteur also gave consideration to Article 27 of the VCDR and
noted that the rationale for immunity in the two situations was the same—​that
both organizations and diplomatic missions conduct their activities ‘in a terri-
tory which is not their own’.75 The report highlighted that the existing protection
provided to the means of communication in the General Convention and the
Specialized Agencies Convention are ‘defined in relation to diplomatic missions’.76
The Special Rapporteur referred to earlier discussions in the ILC on the protection
to be afforded to diplomatic couriers and bags when a question arose whether such
protection should be extended to the couriers and bags of international organi-
zations.77 Direct comparisons with Articles 23 and 36 of the VCDR were also
drawn in the Special Rapporteur’s sixth report when considering fiscal immuni-
ties.78 These discussions demonstrate that individual articles of the VCDR, and
the ILC’s later work on the diplomatic courier and diplomatic bag, influenced the
Special Rapporteur’s reasoning and conclusions on certain issues with respect to
international organizations.
When the ILC discussed the Special Rapporteur’s reports, members also made
reference to specific articles of the VCDR. For example, in 1987 Yankov sug-
gested that Article 41 of the VCDR (and the equivalent provisions in the Vienna
Convention on Consular Relations and the 1975 Vienna Convention) should be
a model for a similar provision on the duty of organizations and their officials to
respect the laws of the host State.79 Comparisons with the VCDR’s provisions
were also drawn by Thiam in 1990 on the question of waiver of immunity80 and
by Hayes in 1991 when discussing fiscal immunities.81 However, with many other
matters on its agenda, the ILC gave low priority to its work on this topic and in
1992 the General Assembly endorsed the ILC’s decision to discontinue its work in
this field.82 In making its recommendation the Commission referred to the lack of
signatories to the 1975 Vienna Convention, the presence of existing agreements
on the privileges and immunities of international organizations, and stated that
the topic did ‘not appear to respond to a pressing need of States or international
organizations’.83

whereas the inviolability of international organizations is based on the right to respect for the privacy
of international organizations, inherent in their legal personality.
74  ‘Fifth Report on Relations between States and International Organizations (Second Part of the
Topic)’ ILC Yearbook 1991 vol II Pt 1, 95–​98.
75 ibid 102. 76 ibid 106.
77  ibid 106, 110. In 1989 the ILC had decided to confine the draft articles on the status of the
diplomatic courier and the diplomatic bag to the couriers and bags of States.
78  ‘Sixth Report on Relations between States and International Organizations (Second Part of the
Topic)’ ILC Yearbook 1991 vol II Pt 1, 117, 121.
79  ‘Summary Record of the 2024th Meeting –​1 July 1987’ ILC Yearbook 1987 vol I, 192.
80  ‘Summary Record of the 2179th Meeting –​22 June 1990’ ILC Yearbook 1990 vol I Pt 1, 222.
81  ‘Summary Record of the 2233rd Meeting –​July 1991’ ILC Yearbook 1991 vol I Pt 1, 172–​73.
82  UNGA Res 47/​33, [7]‌. See discussion in Bekker (n 67) 32–​33.
83 ‘Relations between States and International Organizations (Second Part of the Topic)’ ILC
Yearbook 1992 vol II Pt 2, 53.
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Judicial Consideration of the Intersection of Immunities 309

2.  Judicial Consideration of the Intersection of Immunities

The VCDR and broader diplomatic immunities were referenced in the reports of
the Special Rapporteurs and the discussions of the ILC on the topic of the privi-
leges and immunities of international organizations and their officials at various
points, but ultimately they did not appear to be influential on this later piece of
work. This can be compared to the earlier draft articles on State representatives
to international organizations where obvious parallels were drawn between State
representatives to international organizations and diplomats and the work was
expressly modelled on aspects of the VCDR. The next question this chapter will
consider is the extent to which domestic courts dealing with cases involving the
immunity of international organizations and their officials have referred to analo-
gous immunities for diplomats. Has the VCDR been influential in judgments on
the existence and extent of immunities for international organizations and their
officials?
This section is not intended to comprehensively consider every case where dip-
lomatic immunity has been raised when discussing the immunity of international
organizations. Instead, the intention is to highlight some of the issues that have
arisen with respect to the interaction between the two types of immunities in cases
involving officials of international organizations. There are a number of reasons
why diplomatic immunities and the VCDR may be cited in decisions concern-
ing international immunities. First, as has already been highlighted, the relevant
treaties providing for international immunities may explicitly grant immunities
to international officials (usually senior staff ) to the same extent as those granted
to diplomats. Secondly, national legislation may grant officials of international
organizations the same, or similar, immunities as provided to diplomats. The third
type of cases (the ‘human rights’ cases) concern the immunity of organizations (as
distinct from their officials). In domestic courts in Europe and in the European
Court of Human Rights applicants have argued that the jurisdictional immunity
of international organizations violates the right of access to the courts embodied
in Article 6 of the European Convention on Human Rights.84 In this context
arguments raised by applicants in cases involving the immunity of international
organizations have been utilized in subsequent cases where employees of diplo-
matic missions in employment disputes have attempted to circumvent the applica-
tion of State immunity to their employers.

84 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended, adopted 4 April 1950, in force 3 September 1953) 213
UNTS 221 (ECHR) art 6(1) provides that: ‘In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.’
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310 Diplomatic Immunities and Immunities of International Organizations

2.1 Judicial consideration of diplomatic immunity in cases involving

officials of international organizations
Certain senior officials of international organizations are granted immunities ratio-
nae personae by treaty law whereas other officials are granted immunity rationae
materiae.85 For example, the General Convention provides that the Secretary-​
General and Assistant Secretaries-​General (and their spouses and children) are
afforded the same privileges and immunities as diplomats.86 The Specialized
Agencies Convention includes a similar section for executive heads of agencies and
their families.87 Host State agreements may also grant staff members privileges and
immunities comparable to those granted to diplomats accredited to the state.88
Two cases in 1977, one in Austria involving an official of the International Atomic
Energy Agency (IAEA), and the other in Switzerland concerning an official of the
World Health Organization (WHO), demonstrate the way in which such treaty
provisions may be argued in a national court.89 In the first case, a child custody
dispute involving a senior staff member of the IAEA, the Austrian Supreme Court
held that the staff member was entitled to the immunity provided in Articles 31
and 32 of the VCDR by virtue of the headquarters agreement between the IAEA
and Austria, which accorded staff members at the level of P-​5 or above the same
privileges and immunities as diplomats accredited to Austria.90 In the second case,
an official of the World Health Organization (also at the P-​5 level) successfully
pleaded diplomatic immunity in relation to a traffic incident in Geneva on the basis
of the headquarters agreement between the Swiss Federal Council and the World
Health Organization.91 However, the judgment of the Administrative Tribunal
of the Canton of Geneva in this case is confusing on the scope of the immunity
enjoyed. On the one hand, the Tribunal acknowledged that the official was entitled
to ‘the personal inviolability of diplomatic agents’, but on the other hand suggested
a limited application: that ‘he enjoyed immunity from criminal, civil and adminis-
trative jurisdiction for acts performed in the exercise of his functions, ie at all times

85  Bekker (n 67) 155; Philippa Webb, ‘Should the 2004 UN State Immunity Convention Serve as a
Model/​Starting point for a Future UN Convention on the Immunity of International Organizations?’
(2013) 10 IOLR 319, 331.
86  General Convention art V s 19. 87  Specialized Agencies Convention art VI s 21.
88  See eg Agreement between the Government of the French Republic and the United Nations
Educational, Scientific and Cultural Organization Regarding the Headquarters of UNESCO and the
Privileges and Immunities of the Organization on French Territory (2 July 1954) which grants certain
high-​level officials the ‘status accorded to heads of foreign diplomatic missions’, although this broad
immunity does not extend to French nationals: art 19. Other officials are dealt with pursuant to art
22 of this Agreement.
89  ‘Decisions of National Tribunals: Austria –​In re Karl Katary, Decision of 3 March 1977’ [1977]
UNJY 256; ‘Decisions of National Tribunals: Switzerland –​X v Department of Justice and Police, judge-
ment of 15 June 1977’ [1977] UNJY 257.
90  ‘Decisions of National Tribunals: Austria –​In re Karl Katary, Decision of 3 March 1977’ [1977]
UNJY 256, 257. However, the Court held that immunity was precluded by the fact that the staff
member had earlier initiated court proceedings in Austria against the child’s mother.
91  ‘Decisions of National Tribunals: Switzerland –​X v Department of Justice and Police, judgement
of 15 June 1977’ [1977] UNJY 257.
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Judicial Consideration of the Intersection of Immunities 311

except during his annual vacation’.92 The Tribunal also stated that the immunity
would stand unless ‘there were reasons of public policy (ordre public) to the con-
trary’ (for example, public safety).93 Leaving aside the question whether this is a
correct statement of diplomatic immunity, the Tribunal directly applied analogous
diplomatic immunities and referred to the VCDR in its judgment.
Later cases have also confirmed the application of diplomatic immunity in the
VCDR to senior officials of international organizations pursuant to treaty provi-
sions.94 In some cases, officials of the UN system have attempted to claim broader
diplomatic immunities where they were only covered by immunity for their official
acts. For example, in 1962 a claim of diplomatic immunity by an official of the
United Nations High Commissioner for Refugees was denied by the Lower Court
of the Seine on the basis that the General Convention restricted immunity to ‘offi-
cial acts’ and that international officials could not be equated ‘with envoys of for-
eign governments’.95 The contrast between the two levels of staff members is also
apparent in De Luca v United Nations Organization, where a former UN security
guard claimed a breach of contract against the UN and various UN officials.96 The
US District Court began its judgment by referring to Article 5, section 19, of the
General Convention which accords high-​level officials the same immunities pro-
vided to diplomatic envoys. It then directly employed Article 31 of the VCDR to
the position of the Assistant Secretaries-​General named in the lawsuit.97 In relation
to the four UN officers at a lower level, the Court applied the functional immunity
test in the US International Organizations Immunities Act (IOIA) to hold that
each official was immune as the relevant actions were within their functions.98
At times, the difference between levels of employees of an international organiza-
tion can also cause confusion for domestic courts. In Trempe v Staff Association of
the International Civil Aviation Organization the Superior Court of Quebec cited
a number of articles of the VCDR and the Headquarters Agreement between
Canada and ICAO before applying the functional immunity test to both a senior
official of ICAO as well as another staff member.99 This is despite the fact that the
senior official would have been covered by broader diplomatic immunities.100
In some States diplomatic immunity and the VCDR may be invoked by
defendants as national legislation explicitly grants international organizations and

92 ibid 258. 93 ibid.
94  See eg Dr K v K 2 Ob 166/​98w, ILDC 356 (AT 2000) (Austrian Supreme Court of Justice);
Brzak v United Nations 597 F 3d 107 (2nd cir, 2010) 8–​9; Georges v United Nations No 13–​CV–​7146
JPO, 2015 WL 129657 (SDNY, January 9, 2015) 7–​8.
95 ‘Decisions of National Tribunals:  France  –​Essayan v Jouve, judgment of 1 October 1962’
[1962] UNJY 290.
96  De Luca v United Nations Organization 841 F. Supp. 531 (SDNY, 1994).
97  ibid. The VCDR was also cited with respect to the suits brought against a former UN Secretary-​
General and a former Assistant Secretary-​General.
98  International Organizations Immunities Act 1945 s 7(b) (IOIA).
99  ‘Decisions of National Tribunals: Canada –​Trempe v Staff Association of the International Civil
Aviation Organization and Others, judgement’ [2003] UNJY 585, 598–​99.
100  See analysis by Gillian MacNeil in the Oxford Reports of International Law of Trempe v Staff
Association of the International Civil Aviation Organization (2003) ILDC 1748, [A5]–​[A6].
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312 Diplomatic Immunities and Immunities of International Organizations

their officials the same immunity as diplomats. Where the person concerned is a
national of the host State this can cause added complexities for the application
of immunity.101 For example, in a civil action in Sierra Leone against the driver
of a representative of the World Health Organization, who in the course of his
employment hit another person causing serious injuries, both the driver and the
employer claimed diplomatic immunity.102 The plaintiff argued that the driver, a
Sierra Leonean national, was not entitled to immunity as nationals were not enti-
tled to the immunity of foreign diplomatic agents in the domestic legislation—​
the Diplomatic Immunities and Privileges Act 1961.103 This argument appeared
to be based on a negative reading of Article 37(3) of the VCDR which provides
that members of the service staff who are non-​nationals shall enjoy immunity
from legal process in respect of acts performed in the course of their duties.104
The plaintiff argued that the article could not apply to the defendant as he was a
national of Sierra Leone. However, on the basis of the Diplomatic and Privileges
Order of Sierra Leone the Court held that officials (including Sierra Leoneans)
were immune from suit in respect of acts undertaken in the course of their offi-
cial duties.105
Similarly, diplomatic immunities have been cited in cases involving inter-
national organizations in Kenya where legislation also assimilates the two types
of immunities. In a 2009 case involving a transportation agreement between a
company and the UN Children’s Fund, the High Court of Kenya examined the
commercial activity exemption in Article 31(1)(c) of the VCDR as Kenyan legis-
lation applied aspects of the Convention directly to international organizations.
The Court found that although the transportation agreement was commercial in
nature it was related to the ‘official functions’ of the UN Children’s Fund and
therefore diplomatic immunity prevailed.106 While the invocation of Article 31 in
the context of an organization (as distinct from an agent or official) is problematic,
the final result complied with the absolute immunity from suit for international
organizations in the Kenyan Act.107
Where national legislation restricts immunities, at least one official of an inter-
national organization has argued that the applicable law is customary international
law and that custom supports broader (diplomatic) immunities. As is highlighted
by De Luca, in the US the immunities of international organizations are governed
by the IOIA, which provides that officials enjoy immunity from legal process ‘in

101  See n 28 above.

102  Fillie v Representative, World Health Organization (No CC1215/​2005) 14 March 2007 (Sierra
Leone High Court).
103  ibid [17]. See also Fillie v Representative, World Health Organization (2007) ILDC 1540 [A2].
The plaintiff argued, unsuccessfully, that immunity had been waived in this case.
104  Fillie v Representative, World Health Organization (2007) ILDC 1540, [A2].
105  Fillie v Representative, World Health Organization (No CC1215/​2005) 14 March 2007 (Sierra
Leone High Court) [26].
106  ‘Decisions of National Tribunals: Kenya –​Tanad Transporters Ltd v United Nations Children’s
Fund, Ruling of 1 July 2009’ [2009] UNJY 487, 488.
107  See Privileges and Immunities Act No 3 1970 sch 4 s 1 (Kenya).
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Judicial Consideration of the Intersection of Immunities 313

relation to acts performed by them in their official capacity and falling within
their functions’.108 In Diallo v Strauss-​Kahn109 the former Managing Director of
the IMF claimed immunity from a civil suit for sexual assault on the basis that the
applicable law was not the IOIA, but rather the Specialized Agencies Convention
with its broader diplomatic immunity for executive heads of specialized agen-
cies.110 As the US is not a party to the Specialized Agencies Convention and nor
has it been implemented in US law, Strauss-​Kahn argued that the Convention
was customary international law and was therefore directly applicable in the US
courts.111 The Supreme Court of New York rejected this argument and held that
even if the Specialized Agencies Convention represented customary international
law (doubtful in the Court’s view), the Act with its more limited functional immu-
nity was binding on US courts.112 Together, these cases demonstrate that national
courts have dealt with a diverse range of circumstances when considering the rela-
tionship between diplomatic immunity and the immunity of international organi-
zations in situations involving the officials of such organizations.

2.2 Immunities and the right of access to the courts

The third type of cases evidencing the intersection between diplomatic immunity
and the immunity of international organizations are the ‘human rights cases’, where
it has been argued that the jurisdictional immunity of international organizations
violates human rights, in particular the right of access to the courts (in Europe,
embodied in Article 6 of the European Convention on Human Rights (ECHR)).
In a much-​discussed decision of the European Court of Human Rights, Waite v
Germany, the applicants argued that the German courts had wrongly denied juris-
diction in their employment dispute against the European Space Agency (ESA) on
the basis of the organization’s immunity.113 The applicants argued that the German
courts had disregarded the priority of human rights in the ECHR over immunity
rules and that the proper functioning of the ESA did not require immunity from
jurisdiction in the circumstances.114 The Court rejected this argument, finding
that the organization’s immunity had both a legitimate objective (to ensure its
proper functioning), and was proportionate to the objective of enabling the ESA
to perform its functions efficiently.115 In assessing the requirement of proportion-
ality, the Court referred to the existence of an alternative remedy for staff members
provided by the ESA,116 as well as the possibility that requiring the ESA to be
subject to domestic labour legislation would thwart the proper functioning of the
organization.117

108  IOIA s 7(b). 109  Diallo v Strauss-​Kahn (n 3). 110 ibid 4.

111  ibid 4–​5. 112 ibid 9.
113  Waite v Germany (App No 26083/​94) ECHR 18 February 1999. The case was heard together
with Beer v Germany (App No 28934/​95) ECHR 18 February 1999.
114  Waite v Germany (n 113) [60]. 115 ibid. 116  ibid [68]–​[69].
117 ibid [72].
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314 Diplomatic Immunities and Immunities of International Organizations

Since Waite there have been a number of cases where European domestic courts
have been asked to lift the immunity of international organizations on the basis
that it conflicts with Article 6 of the ECHR.118 Such decisions have considered
(and in some cases, applied) the language of the ‘alternative remedy’ in Waite to
determine if there is an adequate alternative remedy available to the complainant
that would satisfy Article 6 of the ECHR. For example, in a 2003 Belgian employ-
ment case, Siedler v Western European Union, the Court of Cassation held that the
Western European Union’s treaty-​based immunity was incompatible with Article
6(1) of the ECHR.119 The Court examined various features of the internal appeals
commission provided by the Western European Union and found that it did not
satisfy Article 6(1) as it lacked independence from the organization.120 However,
this approach has not been universally applied. Outside the employment context,
in 2008 a United Kingdom court questioned the need to perform an Article 6 analy­
sis to determine the availability of an alternative forum in the face of an immunity
claim by an international organization.121 Similarly, in Mothers of Srebrenica et al
v The Netherlands and the United Nations the Supreme Court of the Netherlands
held that the UN enjoys absolute immunity from prosecution even in the face
of allegations of a failure to prevent genocide.122 The Supreme Court stated that
the UN’s immunity was absolute and that it was unnecessary to use the criteria
formulated in Waite to examine the right of access to the courts in Article 6.123
The validity of the UN’s immunity claim in this case was upheld by the European
Court of Human Rights.124
The important point from the perspective of diplomatic immunity is that the
influence of the arguments in Waite has not been confined to cases involving inter-
national organizations. Subsequently, the case has been referenced in European
Court of Human Rights’ decisions in which applicants have argued that State
immunity has infringed an individual’s right of access to the courts. These argu-
ments have been raised when employees (or former employees) of diplomatic
missions have attempted to bring employment disputes before the courts of the
receiving State. For example, in Fogarty v United Kingdom an Irish national who

118  Western European Union v Siedler (Appeal Judgment) (No S 04 0129 F) 21 December 2009
(Belgian Court of Cassation); X v European Patent Organisation (No 08/​00118) 23 October 2009
(Supreme Court of the Netherlands); Mothers of Srebrenica et  al v State of the Netherlands and the
United Nations (No 10/​04437) 13 April 2012 (Supreme Court of the Netherlands). For discussion of
such cases see August Reinisch, ‘The Immunity of International Organizations and the Jurisdiction of
Their Administrative Tribunals (2008) CJIL 285; Cedric Ryngaert, ‘The Immunity of International
Organizations Before Domestic Courts: Recent Trends’ (2010) 7 IOLR 121.
119  Western European Union v Siedler (Appeal Judgment) (No S 04 0129 F) 21 December 2009
(Belgian Court of Cassation).
120  Western European Union v Siedler ILDC 297 (IT 2005) [H2].
121 ‘Decisions of National Tribunals:  United Kingdom  –​Entico Corporation Ltd v UNESCO,
Decision of 28 March 2008’ [2008] UNJY 477, 487–​88.
122  Mothers of Srebrenica et al v State of the Netherlands and the United Nations (Supreme Court of
the Netherlands, Case No 10/​04437) 13 April 2012 (Supreme Court of the Netherlands) [4.3.14].
123  ibid [4.3.5]–​[4.3.6].
124  Stichting Mothers of Srebrenica v Netherlands (App No 65542/​12) ECHR 11 June 2013 [164].
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Judicial Consideration of the Intersection of Immunities 315

had been employed in the US embassy in London claimed she had been discrimi-
nated against on the basis of her sex.125 The UK courts declined to hear the case
on the basis of the doctrine of State immunity, and consequently, Fogarty claimed
a violation of Article 6 of the ECHR in the European Court of Human Rights. In
assessing this argument the Court applied the analysis in Waite to consider if the
limitation on access to the courts inherent in State immunity pursued a legitimate
aim and was proportionate to ‘the aim sought to be achieved’.126 The Court con-
cluded that sovereign immunity did pursue a legitimate aim (promoting comity
and good relations between States) and could not be regarded as a disproportion-
ate restriction on the right of access to the courts. In its view, recruitment of staff
to diplomatic missions was a process that could involve sensitive and confidential
material and, by conferring immunity on the US, the UK had not exceeded its
margin of appreciation in limiting an individual’s access to a court.127
The analysis in Waite has been applied in other cases involving employment law
claims against embassies, but with very different results. In Cudak v Lithuania, a
case involving the dismissal of a secretary and switchboard operator at the Polish
embassy in Vilnius, a Grand Chamber of the European Court of Human Rights
distinguished Fogarty and found that the restriction on the applicant’s right of
access to the courts was not proportionate to the aim pursued by State immu-
nity.128 On the basis that the applicant’s duties could not be described as relating
to the sovereign interests of Poland, the Grand Chamber held that the Lithuanian
courts had failed the proportionality aspect of the test in Waite and overstepped
their margin of appreciation in applying State immunity.129 In Sabeh El Leil v
France130 a Grand Chamber of the European Court of Human Rights also held
that a French court had ‘failed to preserve a reasonable relationship of proportion-
ality’131 in upholding sovereign immunity in a case involving a dispute between an
accountant and his employer, the Kuwaiti Embassy in Paris.132
These cases have recently been comprehensively examined by the UK Court of
Appeal in Benkharbouche v Embassy of the Republic of Sudan and Janah v Libya.133
In both cases, domestic staff members of embassies situated in London brought
claims against their employers for unfair dismissal, breaches of working regula-
tions, and in Janah, for racial discrimination and harassment.134 Both applicants
were prima facie barred from bringing their claims by virtue of s 16(1)(a) of the
State Immunity Act 1978 (UK) (‘SIA’), which retains the rules of diplomatic
immunity in disputes concerning the employment of staff at a mission.135 The
Court of Appeal held that this section of the SIA was incompatible with Article 6

125  Fogarty v United Kingdom (App No 37112/​97) ECHR 21 November 2001.

126 ibid [33]. 127 ibid [38].
128  Cudak v Lithuania (App No 15869/​02) ECHR 23 March 2010 [74]. 129 ibid.
130  Sabeh El Leil v France (App No 34869/​05) ECHR 29 June 2011. 131 ibid [67].
132 ibid [62]. As in Cudak, the Court held in Sabeh El Leil that the employee’s duties (as an
accountant) could not be linked to the sovereign interests of Kuwait.
133  Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33 (‘Benkharbouche’).
134  ibid [3]‌–​[4].
135  See State Immunity Act 1978 (UK) s 16(1)(a) and discussion in Benkharbouche (n 133) [9]‌.
316

316 Diplomatic Immunities and Immunities of International Organizations

of the ECHR on the basis that ‘international law does not require the grant of
absolute immunity from all employment claims by employees of diplomatic
missions’.136 On that basis the Court made a declaration of incompatibility
under s 4(2) of the Human Rights Act 1998 (UK).137
Although these cases only mentioned diplomatic immunity in relation to its
interaction with State immunity, they demonstrate the way in which arguments
in cases concerning the immunity of international organizations have been used
in employment disputes involving diplomatic missions. A more direct applica-
tion of these arguments to diplomatic immunity is demonstrated by the UK
Court of Appeal decision in Reyes v Al-​Malki and Secretary of State for Foreign
and Commonwealth Affairs.138 The Court had to determine whether the immu-
nity of a Saudi diplomatic agent and his wife should prevail in a case involving
allegations of racial discrimination and harassment and human trafficking by
a domestic staff member. The UK Court of Appeal held that ‘although there
are important differences between state immunity and diplomatic immunity’,
in terms of determining whether diplomatic immunity pursues a legitimate
and proportionate aim, the analysis in Fogarty was apposite.139 However, the
Court of Appeal agreed with submissions of counsel for the Secretary of State
for Foreign and Commonwealth Affairs to the effect that although sovereign
immunity had been subject to a number of restrictions in recent years, there was
nothing to suggest that the international community ‘feels that a similar adjust-
ment is required in relation to diplomatic immunity’.140 The Court held that
the ECHR must be interpreted as far as possible in conformity with the United
Kingdom’s other international law obligations and that the restriction on access
to the courts inherent in diplomatic immunity was not disproportionate.141 In
the end, the result in Reyes accorded with the decision in Waite where it was also
held that immunity pursued a legitimate and proportionate aim. Given that
this case is subject to an appeal it is too early to determine whether these argu-
ments will prevail in the long term. However, these cases demonstrate the way
in which an argument first utilized in the context of an international organiza-
tion (the ESA) in the European Court of Human Rights has now been adopted
in the context of diplomatic and State immunity, despite the differences in the
immunities granted pursuant to international law.

136  Benkharbouche (n 133) [48]. The Court examined the practice of a number of different States
in arriving at this conclusion: see [41]–​[52]. The applicant also successfully argued that the application
of State immunity breached art 47 of the European Charter of Fundamental Rights and Freedoms,
which is similar in content to art 6 of the ECHR: see [69]–​[81].
137 ibid [86].
138  Reyes v Al-​Malki and Secretary of State for Foreign and Commonwealth Affairs [2015] EWCA Civ
32. For further discussion of this case see Chapter 8.
139 ibid [70]. 140 ibid [74]. 141 ibid [70].
 317

Conclusion 317

3. Conclusion

In 1967 at the Sixth Committee of the General Assembly, the UN Legal Counsel
began a statement on the privileges and immunities of the UN, State representa-
tives to the organization and its officials, by discussing the VCDR.142 Given that
diplomatic immunity has certainly been influential on the development of the
immunities of international organizations and their officials this is not surprising.
Early expressions of the immunities of international organizations and their offi-
cials were phrased in the terminology of diplomatic privileges and immunities. As
is evidenced by the General Convention, such language is retained in many trea-
ties when discussing the immunity of high-​level officials of international organiza-
tions. But as is also demonstrated by the discussions at the ILC on the relations
between States and international organizations, while the provisions of the VCDR
were a model for considering the privileges and immunities of State representa-
tives to international organizations, this was not necessarily the case when the ILC
came to consider the privileges and immunities of organizations and their officials.
Nevertheless, the VCDR was raised, and comparisons with diplomatic immunities
were drawn, at a number of points during the ILC’s discussions.
The relatively few references to the VCDR in the ILC’s later work on the rela-
tions between States and international organizations is indicative of the growth of
a separate body of treaty law dealing with the privileges and immunities of a myr-
iad of different international organizations. In 1947 Kunz recognized the need for
a ‘new law’ on the topic of the privileges and immunities of international organiza-
tions, one which was ‘independent and emancipated from that of the privileges of
diplomatic agents’.143 By 1961 Jenks was able to write that the law of international
immunities no longer consists of ‘general principles resting on the questionable
analogy of diplomatic immunities’, but instead comprises a ‘complex body of rules
set forth in detail in conventions, agreements, statutes and regulations’.144 Despite
the existence of this separate body of law, the interaction between diplomatic
immunity and the immunity of international organizations is evident in case law
discussing the immunities of officials of such organizations, particularly where trea-
ties or statutes require such interaction. Perhaps the clearest indication of advances
in the law relating to privileges and immunities of international organizations is
the fact that arguments raised in cases involving challenges to the immunity of
international organizations are now being used in similar attempts to restrict the
immunity of States (in the activities of their diplomatic missions) and diplomats.
The appropriateness of such arguments in the context of diplomatic immunity
has been accepted by both domestic courts in Europe and also by the European
Court of Human Rights, although the outcomes may have differed. Given the

142  See above (n 64): ‘Statement made by the Legal Counsel at the 1016th Meeting of the Sixth
Committee of the General Assembly on 6 December 1967’ [1967] UNJY 311–​12.
143  Kunz (n 24) 842.
144  Jenks (n 28) xxxv.
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318 Diplomatic Immunities and Immunities of International Organizations

continuing attempts to restrict the immunity of all types of international persons
(including international organizations, States, and diplomats) notably in the con-
text of human rights abuses, it will remain to be seen whether there will be further
intersections between the law relating to diplomatic immunities and the immuni-
ties of international organizations.
 319

18
The European Union and Diplomatic Law
An Emerging Actor in Twenty-​First Century Diplomacy

Graham Butler

1. Introduction

This chapter intends to explore the legal framework of which the European Union
(the ‘EU’ or ‘the Union’) avails in its role as a diplomatic actor. The EU is con-
tinuously pursuing a more distinctive foreign policy with its own global ambi-
tions, and with every internal treaty revision, it begins to look more and more
like a State of its own, with a permanent diplomatic corps to service its needs.
Externally, official international diplomacy now extends beyond the strict observa-
tions contained within the VCDR and is conducted by international organizations
and non-​State actors such as the EU, which the Convention does not specifically
cater for. International diplomatic law limits the role of diplomatic actors to States,
yet non-​States now take part in diplomacy around the world. With great ambi-
tion, questions now arise from how the EU uses and embeds existing international
law for diplomatic activity given it is not a State. Its unique status as an enhanced
international organization, in full knowledge of the State-​centric nature of inter-
national diplomatic law, makes for a worthy case to analyse. The Union cannot
ratify the Vienna Convention, yet it is a diplomatic actor throughout the world.
This chapter delves into the legal encounters and experiments that the EU has
tested for the conduct of its diplomatic endeavours. The build-​up of diplomatic
efforts over time by the Union has put down the question—​how far can the EU
go through the international diplomatic framework given its present legal status?
With a multi-​stakeholder approach now becoming more commonplace, this in
turn brings forward even further questions about the capacity of new actors in the
diplomatic field. It is important therefore to consider the issues of EU law on the
one hand, and that of international law on the other to fully grasp the issues in
this case. Developments regarding the EU as a diplomatic actor have legal rami-
fications, and are significant not just for the Union, but all third States and the
diplomatic community on a global scale. This chapter deliberates and conclusively
argues that the EU, as an entity that as a practical need has developed a sophis-
ticated ‘get-​around’ for its diplomatic activity,—​albeit in a legally challengeable

The European Union and Diplomatic Law: An Emerging Actor in Twenty-First Century Diplomacy.
Graham Butler. © Graham Butler, 2017. Published 2017 by Oxford University Press.
320

320 The European Union and Diplomatic Law

way in international law—​to incorporate itself into a global diplomatic network
and to ease the conduct of its international relations. In effect, the EU is breaking
new ground as it is, in practice, changing the law surrounding diplomatic activity.
This absence of an appropriate international legal framework for new diplomatic
actors, for special international organizations such as the EU, brings new legal
challenges for diplomacy in the twenty-​first century. The chapter also discusses the
internal and external challenges for the EU and the application-​seeking of Vienna
Convention principles for itself, in addition to examining the recent developments
in the area of EU diplomatic law, and what the future may hold as the institutional
framework of the Union continues to evolve.

1.1 The EU and the VCDR

The ICJ opinion in United States v Iran stated that ‘… the institution of diplo-
macy, with its concomitant privileges and immunities, has withstood the test of
centuries and proved to be an instrument essential for effective co-​operation in the
international community, and for enabling States, irrespective of their differing
constitutional and social systems, to achieve mutual understanding and to resolve
their differences by peaceful means’.1 At the time of coming into force in 1964, the
VCDR represented the codification of established practice, yet today, this model of
traditional diplomacy may no longer be fit for purpose with international organi-
zations of an advanced nature now an intricate part of the process. In the interven-
ing period, international organizations have seen a transformation in the way they
operate and how they have altered the global framework of traditional diplomacy,
the most prominent of which who could be said to be at an advanced and unique
stage of integration—​the EU. The EU early in its own constitutional texts states
that it, ‘shall contribute to . . . the strict observance and the development of inter-
national law, including respect for the principles of the United Nations Charter’,2
representing a strong outward vision for its role in the global society. However,
there are a number of sensitivities surrounding the EU as a diplomatic actor as
its goes about partaking in such affairs, as it is unusual in the traditional sense
for it becoming a diplomatic actor. The EU is a key figure in the transformation
of diplomacy as we know it. Delegations of the European Union (‘Delegations’),
under the authority of the High Representative of the Union for Foreign Affairs
and Security Policy,3 are today operating in particular instances in a similar vein
to full-​scale diplomatic missions, attempting to become like some of their own
Member States. Officially, they constitute the representation of the EU on a dip-
lomatic level abroad, under the authority of the High Representative. While the
EU and its Member States may be satisfied with the way in which the VCDR has
been interpreted over a significant period of time, it has consistently thrown up

1  Case Concerning United States Diplomatic and Consular Staff in Tehran, United States of America v
Iran [1979] International Court of Justice 64.
2  Article 3(5), Treaty on European Union (TEU).
3  Article 221(2), Treaty on the Functioning of the European Union (TFEU).
 321

Introduction 321

issues within international law for the EU. As a result, questions arose as to the
exact legal standing of these EU diplomatic missions and where they fit within the
international legal order, including how the EU is challenging the underpinning
of diplomatic practice that has been in place. The Union falls outside of the strict
criteria of statehood set out in the Charter of the United Nations and the Vienna
Convention.
A short but significant treaty, the VCDR in the international arena of diplomacy
laid the groundwork for many international treaties and agreements that have
subsequently been enacted throughout the world.4 It is one of the most widely
ratified global treaties and fifty years after coming into force, remains the corner-
stone of international dialogue and diplomacy. With its wide acceptance comes an
equally wide range of interpretation.5 Diplomatic law and specifically the Vienna
Convention was produced to serve, protect, and defend the operations, functional-
ity, and the decorum of practices that have been in place for centuries. In the latter
twentieth century, it has been proven that sovereignty is no longer vested solely in
States, but also bedded in bodies like the EU,6 a regional structure that is some-
where between the intergovernmental and the supranational levels. Yet, it would
have taken incredible vision for anyone in the early 1960s, when negotiations were
being conducted for the development of the Vienna Convention, that non-​State
entities may need to be catered for in international law at some juncture further
down the line. It has been put that the right to be an actor in diplomatic activity
is seen to flow from a sovereign State.7 Ultimately, the EU’s formulation as a non-​
State entity poses significant challenges to its reach, as it in principle cannot play in
the same league as the nation States. The alliance of nation States rules in matters
of diplomacy were developed by the nation States, for nation States, through the
definitions now accepted by the Vienna Convention. This closed structure of pub-
lic international law has unintentionally left new unique entities like the EU out in
the cold, leading the way in supranational and international diplomacy.
The EU is a newcomer to the game of diplomacy, having only been created as
the initial ‘European Communities’ in the 1950s. Not only is the EU of today a
new recruit, but diplomatic practices have also seen substantial deviations from
practice when the Vienna Convention came into force in the 1960s.8 Yet little has
changed in the interpretation of the strict nation State principle and the entities for
which the Vienna Convention applies in this regard. Even if the Union wanted—​
and the EU Member States took no issue with a proposal—​it would not be in a

4  See Chapter 1.
5  Paul Behrens, Diplomatic Interference and the Law (Hart Publishing, Oxford 2016) 38.
6  Steven Blockmans, ‘EU Global Peace Diplomacy: Shaping the Law on Statehood’ in Dimitry
Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of the International Legal Order
(CUP, Cambridge 2013) 130.
7  Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations
(3rd edn, OUP, Oxford 2008) 24.
8  Jan Wouters and Sanderijn Duquet, ‘Unus inter plures? The EEAS, the Vienna Convention and
International Diplomatic Practice’ in David Spence and Jozef Bátora (eds), The European External
Action Service: European Diplomacy Post-​Westphalia (Palgrave Macmillan, London 2015) 162.
32

322 The European Union and Diplomatic Law

position to ratify the Vienna Convention. International diplomatic law does not
cater for international organizations, but rather is State-​orientated as it is based on
the premise of statehood, closely associated with members of the United Nations.
It could be construed therefore that international organizations would be excluded
outright from not only ratifying the Vienna Convention, but also availing them-
selves of its provisions. Articles 48 and 50 of the Vienna Convention provide that
only States may sign and ratify the international treaty. In order for the EU and its
Delegations to be in line with the contemporary norms of diplomacy as observed
by the traditional players, they must ensure their initial compliance with the arti-
cles specified within the Vienna Convention.
There are many legal challenges for the EU to overcome when it attempts to try
and avail itself of the Vienna Convention for its purposes, namely, to get recog-
nized by the world as a global actor, with an internationally renowned contingent
of diplomats. Therefore, a continued tension is evident between EU diplomatic
activity and the international legal framework governing such practices at pre-
sent.9 The Vienna Convention is being deployed by the EU to its widest possible
extent. Where the principle of reciprocity woven within the text of the Vienna
Convention is concerned, an actor like the EU cannot offer such mutual recogni-
tion as that would be a preservation of EU Member State competences. Protocol
7 therefore, as part of the EU Treaties, arranges for the privileges and immunities
of the EU, with Chapter VI of the same Protocol covering the missions of third
States accredited to the EU. Without specifically naming particular EU Member
States, it notes, ‘the Member State in whose territory the Union has its seat shall
accord the customary diplomatic immunities and privileges to missions of third
States accredited to the Union,’10 or in other words, in Member States where the
Union’s institutions are active, in Belgium,11Luxembourg, France, and Germany.
These steps, instigated by the Union, help to build it as a diplomatic actor.

2.  Legal Framework for External Action of the European Union

The EU is challenged by internal obstacles and external hurdles as a diplomatic

actor in international law. It has been held that customary law at the international
level covering rights and privileges otherwise conferred upon States by the VCDR
do not necessarily apply to international organizations.12 Hence, the EU has to
configure another way of operating. Complimenting it are provisions enshrined
within the EU Treaties and its accompanying legislation of secondary nature that

9  Ramses A Wessel and Bart Van Vooren, ‘The EEAS’s Diplomatic Dreams and the Reality of
European and International Law’ (2013) 20 Journal of European Public Policy 1350, 1363.
10  Protocol 7, Chapter IV, Article 16 attached to the Treaties of the European Union.
11  Frédéric Dopagne, Sanderijn Duquet, and Bertold F Theeuwes (ed), Diplomatiek recht toegepast
in België (Maklu, Antwerp 2014) 39–​42.
12 Iain MacLeod, Ian D Hendry, and Stephen Hyett, The External Relations of the European
Communities: A Manual of Law and Practice (Clarendon Press, Oxford 1996) 217.
 32

Legal Framework for External Action of the European Union 323

are there to support it. While there are multiple political factors to be fully taken
into consideration for the exercise of the EU within international diplomacy,
greater legal competences take precedence before any action is deployed. Before the
Treaty of Lisbon came into effect in 2009, which attempted to align ambition with
reality, there was no encompassing treaty framework that dealt with the Union’s
external action and representation.13 Article 13 of the Treaty on European Union
(TEU) made important changes in this regard in creating a single framework for
institutional coherence, and bestowed clear unambiguous legal personality upon
the EU.14 This was a welcome development that had for too long been brushed
aside as an implicit understanding, but the Treaties of the Union now provide all
actors with much needed legal clarity. Most importantly for lawyers in the field of
EU external relations and diplomacy, such explicitness creates a better operating
environment for the EU and for the understanding of its institutions on the world
stage. The legal framework for the EU’s institutions and various bodies was there-
fore strengthened; however, it did not fully settle the distribution of competences
in the external relations, nor the decision-​making procedures.
As an international organization, the EU is subject to international law in its
relations with third States and other international organizations. For the external
workings of the EU, the Treaties note, ‘the Union delegations in third States and at
international organisations shall cooperate and shall contribute to formulating and
implementing the common approach’15 and furthermore ‘the Union delegations
in third States and international conferences, and their representations to inter­
national organisations, shall cooperate in ensuring that decisions defining Union
positions and actions adopted pursuant to this Chapter are complied with and
implemented’.16 Specific recognition that the EU is different in the international
arena has been acknowledged with the passing of a resolution at the United Nations
General Assembly in 2011,17 granting the Union enhanced observer status—​the
first entity to achieve this.

2.1 EU diplomacy: Past and present

In order to garner a better sense of how the EU configures itself with diplo-
matic law, it is first important to contextualize the circumstances of how it came
to today’s fruition. From near the beginning of its creation, the institutions of
the EU have developed their own unique network of diplomacy on an individ-
ual state-​by-​state basis, bilaterally, starting with mere information and commu-
nications offices in London and Washington DC in the 1950s, before gradually
expanding as Delegations of the European Commission in African, Caribbean, and

13 Eric Hayes, ‘EU Delegations:  Europe’s Link to the World’ in Knud Erik Jørgensen and
Katie Verlin Laatikainen (eds), Routledge Handbook on the European Union and International
Institutions: Performance, Policy, Power (Routledge, Abingdon 2013) 28.
14  Article 47 TEU. 15  Article 32 TEU. 16  Article 35 TEU.
17  A/​RES/​65/​276 United Nations General Assembly. Participation of the European Union in the
Work of the United Nations. New York, 10 May 2011.
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324 The European Union and Diplomatic Law

Pacific Group of States in the 1960s,18 which mainly dealt with low-​level polit-
ical affairs, eventually seeing an intensive growth in the 1990s,19 leading all the
way up to today’s more simplified Delegations of the European Union throughout
the world—​a major transformation for European standards. This is particularly
so given that EU Member States were not always so eager to allow institutions of
EU to get involved in traditional diplomacy,20 but eventually allowed for a shift in
expertise in the Delegations from ‘technicians’ to ‘diplomats’.21 While the Vienna
Convention catered for customary international diplomatic law that formed the
accepted legal framework of inter-​State diplomacy,22 it would be correct to say that
such diplomacy is today not only practiced by States, but also other stakeholders
like the EU. The Treaty of Lisbon, coming into effect in 2009, allowed for the
establishment of the European External Action Service (‘External Action Service’)
in 2010,23 the diplomatic arm of the European Union which maintains responsi-
bilities for Delegations with a legal underpinning.
With significantly increased powers by comparison to the previous Delegations
of the European Commission, and representing just one institution of the EU
prior to the Treaty of Lisbon, the Delegations nonetheless acted as the natural base
for all EU activity. The replacement Delegations of the European Union today did
not appear out of nowhere, and succeeded them as near full-​scale diplomatic mis-
sions made up of staff from the Commission, the Council, and EU Member States,
with greater levels of responsibility for representing the Union as a whole. Yet they
remain within the international legal framework second class to nation States as
provided by the Charter of the United Nations as non-​States. Delegations of the
European Commission were not full diplomatic missions in the strict sense of the
term either, but were often styled as such full-​scale missions,24 despite not actually
having the complete competences of a full diplomatic mission. As a result, the EU
(or then, European Communities) had to avail itself of alternative legal methods to
form diplomatic missions in third States. Presently it opts for using Establishment
Agreements with third States as a means of underpinning Delegations of the
European Union. The Delegations, either previous ones of the Commission or
current Delegations of the entire EU, have always had their competences expanded
over time by the Member States, with an ever-​increasing scope of capabilities.
Accordingly, it can be said that the Vienna Convention does not serve the needs of

18  Véronique Dimier and Mike McGeever, ‘Diplomats Without a Flag: The Institutionalisation of
the Delegations of the Commission in African, Caribbean and Pacific Countries’ (2006) 44 Journal of
Common Market Studies 483, 485.
19 Michael Bruter, ‘Diplomacy without a State:  The External Delegations of the European
Commission’ (1999) 6 Journal of European Public Policy 183.
20  Pierre Vimont, ‘Foreword’ in Joachim A Koops and Gjovalin Macaj (eds), The European Union
as a Diplomatic Actor (Palgrave Macmillan, London 2015) x.
21 David Spence, ‘The European Commission’s External Service’ (2004) 19 Public Policy and
Administration 61, 66.
22  Jan Wouters and Sanderijn Duquet, ‘The EU and International Diplomatic Law: New Horizons?’
(2012) 7 The Hague Journal of Diplomacy 31, 31.
23  Article 27(3) TEU.
24  Ivor Roberts (ed), Satow’s Diplomatic Practice (6th edn, OUP, Oxford 2009) 407.
 325

Legal Framework for External Action of the European Union 325

modern twenty-​first century diplomacy for unique entities when nation States are
no longer the ultimate holders of sovereignty or lone actors in diplomacy in terms
of international relations. States have been the established actors in the field of dip-
lomacy since earlier times, and they were not subject to the same level of scrutiny
that the EU has had to endure since the time of its establishment. Nonetheless,
the practical functioning of the Delegations continues to resemble that of formal
embassies, even as they further follow issues where it is possible to make a more
separate distinct impact.

2.2 The Council decision to establish the European External

Action Service
One of the numerous aims of external relations reform in the EU through the
Treaty of Lisbon was the establishment of a new body charged with the Union’s
diplomacy under the direction of the High Representative of the Union for Foreign
Affairs and Security Policy and Vice-​President of the European Commission who
in effect acts as the Foreign Minister of the European Union.25 In July 2010, this
monumental step was taken after a quadrilogue progress involving multiple actors
to set up the European External Action Service,26 which is now central to the
EU’s role in international diplomacy, putting numerous external relations poli-
cies of the European Union under one roof as its diplomatic service. The External
Action Service is not an institution in its own right, but the basis for its establish-
ment is provided in the Treaties. The Directorate-​General for External Relations
in the European Commission (RELEX) was dissolved and merged with Council-​
Secretariat external relations functions that form the External Action Service as we
see it today, as a functionally autonomous body. The Delegations of the European
Commission changed to Delegations of the European Union literally through ‘the
flick of a switch’ in 2009.27 The Delegations of the European Union were specific-
ally mentioned in the Treaty of Lisbon, thus obtaining a firm legal basis, featuring
as a direct result of the deepened ambition on the part of the EU to play a wider
role in international affairs.28
With ‘an astonishing amount of law’ involved in the early day of the External
Action Service as it made its first steps,29 Council Decision 2010/​427/​EU (‘the

25  And who, for reasons of the CFSP/​non-​CFSP divide, has no Deputy.
26  ‘L 201/​30. Council Decision of 26 July 2010 Establishing the Organisation and Functioning of
the European External Action Service (2010/​427/​EU)’ 30.
27 David O’Sullivan, ‘The EU’s External Action  –​Moving to the Frontline’ (EU’s External
Action—​Moving to the Frontline, Institute of International and European Affairs, 18 June 2014).
(Presentation).
28  Article 221 TFEU: ‘(1) Union delegations in third countries and at international organisations
shall represent the Union. (2)  Union delegations shall be placed under the authority of the High
Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation
with Member States’ diplomatic and consular missions.’
29  Geert De Baere and Ramses A Wessel, ‘EU Law and the EEAS: Of Complex Competences and
Constitutional Consequences’ in David Spence and Jozef Bátora (eds), The European External Action
Service: European Diplomacy Post-​Westphalia (Palgrave Macmillan, London 2015) 175.
326

326 The European Union and Diplomatic Law

Council Decision’) flowing from Article 27(3) TEU gave Delegations of the
European Union through the European External Action Service a new array of
legal powers to conduct the external affairs of the Union in certain circumstances
and was seen as a method of ‘strengthening the EU’s institutional capacity to
rise to . . . challenges’.30 The Council Decision even went as far as to reference
the VCDR,31 and how the EU would lead negotiations for such Establishment
Agreements as a functionally autonomous body, whilst not being entirely inde-
pendent of the other institutions, namely the Commission and the Council. The
External Action Service is not an institution of the European Union in its own
right,32 and other than in the declarations to the EU Treaties, the External Action
Service is specifically referenced in the TEU within Article 27. This is a miniscule
amount compared to its head, the High Representative, who is extensively refer-
enced on matters of external action and otherwise.33 Arguably, not being an insti-
tution in its own right with standing equal to that of the EU institutions makes
its tasks more difficult to execute fully, despite it also being subject to the Court of
Justice of the European Union. Not all Delegations of the European Commission
were the same in terms of their ability to act, and some Delegations had more
prominence than others, resulting in the European External Action Service suf-
fering ‘from a number of birth defects and childhood diseases’.34 This disparity
became even more widely acknowledged upon their conversion to Delegations of
the European Union, with some Delegations given wider coordination roles and
additional new powers agreed by all the stakeholders in Brussels.35

2.3 Competence divisions
The nature of the European External Action Service is intrinsically complex with
its mixture of competences divided between itself, the institutions of the EU, and
that of its own Member States. This hybrid nature stems from the Union’s own
fragmented constitutional structure that has been in place since its foundation.36

30 European External Action Service, ‘Report by the High Representative to the European
Parliament, the Council and the Commission’ (European External Action Service 2011) <http://​
www.eeas.europa.eu/​images/​top_​stories/​2011_​eeas_​report_​cor_​+_​formatting.pdf> accessed 10 June
2014, at 1.
31  Article 5(6) ‘L 201/​30. Council Decision of 26 July 2010 Establishing the Organisation and
Functioning of the European External Action Service (2010/​427/​EU)’ (n 26) 30.
32  The institutions of the EU are set out in Article 13 TEU, which does not include the External
Action Service.
33  See, for example, articles 15, 18, 21, 24, 26, 30, 33, 34, 36, 38, 41, 42, and 43 TEU, and articles
218, 220, 221, 234, and 243 TFEU.
34 Jan Wouters and Hanne Cuyckens, ‘Festina Lente:  CFSP from Maastricht to Lisbon and
Beyond’ in Maartje de Visser and Anne Pieter van der Mei (eds), The Treaty on European Union 1993–​
2013: Reflections from Maastricht (Intersentia 2013) 237.
35  Wessel and Van Vooren (n 9) 1350.
36  Thomas Ramopoulos and Jed Odermatt, ‘EU Diplomacy: Measuring Success in Light of the
Post-​Lisbon Institutional Framework’ in Astrid Boening, Jan-​Frederik Kremer, and Aukje van Loon
(eds), Global Power Europe –​vol 1: Theoretical and Institutional Approaches to the EU’s External Relations
(Springer 2013) 20.
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Legal Framework for External Action of the European Union 327

External relations acts by the EU are split, and can be defined loosely between
those that are within the largely intergovernmental Common Foreign and Security
Policy (CFSP) and other supranational non-​CFSP acts. With this abnormal man-
date, clear hesitation was prevailing on the part of some EU Member States at
the time of the Intergovernmental Conference that paved the way for the Treaty
of Lisbon that gave effect to the current Treaties of the European Union.37 The
legal basis of Union measures in its external policies has nonetheless been sub-
ject to internal challenge at the Court of Justice of the EU since the Treaty of
Lisbon.38 Declaration 13 annexed to the Treaties concerning CFSP noted that,
‘the creation of the office of High Representative of the Union for Foreign Affairs
and Security Policy and the establishment of an External Action Service, do not
affect the responsibilities of the Member States, as they currently exist, for the for-
mulation and conduct of their foreign policy nor of their national representation
in third States and international organisations’, as an apparent reference to quell
the anxieties of EU Member States. Declaration 14 supplemented this, noting that
the High Representative and the European External Action Service as internal EU
actors ‘will not affect the existing legal basis, responsibilities, and powers of each
Member State in relation to the formulation and conduct of its foreign policy, its
national diplomatic service, relations with third States and participation in inter-
national organizations, including a Member State’s membership of the Security
Council of the United Nations’.
With the division of competences between the EU’s own institutions and the
Member States, the External Action Service and its Delegations are deserving of
their exceptional position in the international legal sphere.39 These internal com-
petences also ascend when Delegations of the European Union in third States host
senior officials from an array of EU institutions.40 While this may be a normal
occurrence for EU Member States’ external representations in the form of embas-
sies, the process for the EU is tangibly different due to the various heads of the
different institutions akin to Head of State or Head of Government figures. Much
of these issues were not dealt with in the Treaty of Lisbon and it was left to the
actors to develop an arrangement at a later point that was acceptable. The Union
has tested, and continues to test the limits of its Treaties and the acceptability of
its conduct by its own Member States in its diplomatic actions, without trying
to overwhelm the national embassies belonging to its Member States. Given that

37  Some EU Member States continue to be critical in the way the External Action Service operates.
For more, see Knud Erik Jørgensen, ‘EU Diplomacy in Global Governance: The Role of the European
External Action Service’ in Joachim A Koops and Gjovalin Macaj (eds), The European Union as a
Diplomatic Actor (Palgrave Macmillan, London 2015) 40.
38  For example, in terms of EU anti-​piracy operations and potential wider remit of Union action,
see Graham Butler, ‘Pinpointing the Appropriate Legal Basis for External Action’ (2015) 6 European
Journal of Risk Regulation 323.
39  Bart Van Vooren, ‘A Legal-​Institutional Perspective on the European External Action Service’
(2011) 48 Common Market Law Review 475, 500.
40  For a more general overview, see Leendert Erkelens and Steven Blockmans, ‘Setting up the
European External Action Service: An Act of Institutional Balance’ (2012) 8 European Constitutional
Law Review 246.
328

328 The European Union and Diplomatic Law

the Treaty of Lisbon and the Council Decision to establish Delegations of the
European Union still left some gaps in the fulfilment of duties giving rise to poten-
tial legal vacuums, the Commission and the External Action Service developed a
‘Working Arrangement’ to cover outstanding matters they thought necessary to
straighten out at that time.41 This gradual development and shaping of the EU’s
diplomatic activities continues to show the resilience that it has to become a true
global actor.

3.  Internal Challenges

International law has been put to use in the EU’s external relations policies, yet
it is also used internally within third States.42 Gradually since its inception, the
Union has expanded its abilities both internally in terms of institution building
and externally by attempting to formulate solid positions on matters pertaining
to foreign policy and external relations. Always keen to accentuate its position on
world issues, the EU’s own internal matters which have implications for external
diplomacy, would need to be in order first.

3.1 Ambassadors vs Heads of Delegation

An examination of the articles within the Council Decision on the establishment
of the European External Action Service provides an insight into the thinking of
the EU Member States that consented to its formation and the powers that were
to be granted upon the leader of each Delegation of the European Union. Article
5 of the Council Decision covers the necessary provisions outlining the scope of
the Delegations of the European Union, but also the Heads of Delegation. While
outlining the numerous responsibilities of the role, not once in the document does
it refer to the Heads of Delegations of the European Union as Ambassadors. Over
time, the Union created a practice where procedures for accrediting Heads of their
Delegations, originally Delegations of the European Commission, were standard-
ized.43 This can be explained by the obvious international law difficulties the EU
may have faced internally by the Court of Justice of the European Union or exter-
nally, by the difficulty of prejudging whether third States would accept such a title.
The Council Decision however did not broach the issue, perhaps deliberately in
order to avoid binding itself. The process for presenting the credentials differs from
nation State to nation State, in that since there is no ‘Head of State’ per se, the
Presidents of both the European Council and the Commission sign the relevant

41 European Commission Secretariat-​ General, ‘Working Arrangements Between Commission

Services and the European External Action Service (EEAS) in Relation to External Relations Issues’
(European Commission 2012) (2012) 41133, 1–​40.
42  Bart Van Vooren and Ramses A Wessel, EU External Relations Law: Text, Cases and Materials
(CUP, Cambridge 2014) 267.
43  Jan Wouters and Sanderijn Duquet (n 22) 39.
 329

Internal Challenges 329

papers,44 the Letter of Credence, so as to ensure the competency bases are covered
from the perspective of the EU and that of the Member State. Article 13(1) of
the Vienna Convention ensures that the Head of Mission in the receiving State is
given uniformity in term of presenting their credentials. Despite this all, the cour-
tesy title of ‘Ambassador’ for the Head of the Delegations of the European Union
has been in place for some time, even when the Delegations previously were only
Delegations of the European Commission,45 and is a respected principle now for
EU ‘Ambassadors’ around the world, albeit with varying levels of recognition in
receiving States.
The same principles apply, to a degree, to the actual diplomatic missions them-
selves. While the practical term of an ‘embassy’ can be used and understood when
referring to a Delegation of the European Union, it is not the legal term given to
them, as the used term in the Vienna Convention is ‘diplomatic mission’. Despite
this, a conscious effort has been made by the External Action Service and the
Delegations of the European Union to opt for the customary title of ‘Delegation’,
marking an obvious distinction to EU Member State embassies from the outset,
for fear of misleading those unaccustomed with the intricate details of legal status.
Furthermore, the multitude of official documents from the EU institutions bear
all the hallmarks of Delegations of the European Union being in fact embassies of
an EU kind, just without the formal title of ‘embassy’.

3.2 Personnel documents and consular assistance

Officials staffing the Delegations of the European Union are not nationals of the
Union, but rather, nationals of particular EU Member States first, and citizens
of the European Union second, supplementing their nationality.46 The issuing of
European Union travel documents, laissez-​passers, has not just been a creation of
the European External Action Service, but has been used by officials from a range
of EU institutions for some time. The United Nations has been issuing laissez-​
passers of their own kind for decades with their legal foundation being Article VII
of the Convention on the Privileges and Immunities of the United Nations.47
Some EU Member States that have their officials on secondment to the External
Action Service in any capacity provide national diplomatic or official passports to
their officials. Therefore, officials from Delegations of the European Union who do

44  Henry G Schermers and Niels Blokker, International Institutional Law: Unity within Diversity
(5th edn, Martinus Nijhoff Publishers, Leiden 2011) 1163.
45  Philippe de Schoutheete and Sami Andoura, ‘The Legal Personality of the European Union’
(2007) LX Studia Diplomatica 1, 7.
46  For an overview of European Union citizenship dynamics, see Helle Krunke and Felix Schulyok,
‘National Citizenship and EU Citizenship: What Actual Competence Is Left for Member States in
the Field of Citizenship?’ in Thomas Giegerich, Oskar Josef Gstrein, and Sebastian Zeitzmann (eds),
The EU between ‘An Ever Closer Union’ and Inalienable Policy Domains of Member States (Nomos 2014)
107–​52.
47  Convention on the Privileges and Immunities of the United Nations, United Nations Treaty
Collection, 1946 <http://​www.un.org/​en/​ethics/​pdf/​convention.pdf> accessed 10 June 2014.
30

330 The European Union and Diplomatic Law

not have the privilege of holding diplomatic or official passports from their own
EU Member State can obtain documentation provided by the EU, determining
their status as officials of the EU. More background work was required here, and
in December 2013, the EU laid down a new regulation governing EU’s laissez-​
passers.48 Whatever the legal position of EU laissez-​passers, they are no replacement
for diplomatic passports issued by individual EU Member States, meaning that
they are effectively useless should a third State not be aware of EU laissez-​passers
worthiness, or worse still, be unwilling to recognize their existence at all. While it
is an internal predicament of the EU that it has no competence to issue passports
for its own officials, it does aspire to possess such power one day. In the meantime,
it is taking whatever steps necessary to progress its agenda with the knowledge of
its Member States.
The EU is also involving itself in the implementation of citizens’ rights accord-
ing to the Treaties, specifically with regard to consular assistance. Some willing
Member States of the EU have begun issuing consular services to citizens of the
EU beyond their own nationals, with some even inserting Article 23 TEU inside
their passports, stating, ‘every citizen of the Union shall, in the territory of a third
State in which the Member State of which he is a national is not represented, be
entitled to protection by the diplomatic or consular authorities of any Member
State’,49 which is a practice divergent from international law generally. With EU
Member States offering differing levels of consular services abroad, this supporting
position that the Member States are beginning to engage in leads to the potential
scope for European Union to be involved at some advanced stage in future involve-
ment in consular matters, given its representation in more third States around the
world than most of its Member States. This raises the inevitable question whether
Delegations of the European Union would have the resources to manage and
administer consular issues for citizens of the EU as a whole. At present, such issues
remain with the Member States as a competence of theirs, but also that of nation
States under the VCCR when legal get-​arounds may have to be explored by the
EU. Such options would include the negotiation of agreements with third States
as a means of availing themselves of this ability, and more importantly, the willing-
ness of the EU Member States to consent to it. An external challenge in this regard
would be caused by the question of whether agreements on consular issues made
within the European Union would be applicable in third States.50 In the mean-
time, the Union continues to experience a range of legal obstacles if it is to reach
its full potential in consular affairs on behalf of EU citizens.51 Evidently, the Union

48  ‘L 353/​26: Council Regulation of 17 December 2013 Laying down the Form of the Laissez-​
Passer Issued by the European Union (2013/​1417/​EU)’ 26.
49  This provision is similarly outlined in Article 46 (Diplomatic and consular protection) in the
Charter of Fundamental Rights of the European Union.
50  For more on consular issues and the European Union generally, see Annemarieke Vermeer-​
Künzli, ‘Where the Law Becomes Irrelevant: Consular Assistance and the European Union’ (2011) 60
International and Comparative Law Quarterly 965.
51 Jan Wouters, Sanderijn Duquet, and Katrien Meuwissen, ‘Caring for Citizens Abroad:  The
European Union and Consular Tasks’ (2014) 19 European Foreign Affairs Review 563, 564.
 31

External Challenges 331

is always seeking out opportunities for itself, be it for greater formal competences
down the line, or in times when it makes practical sense, for attaining additional
internal competences.

3.3 The High Representative of the Union for Foreign Affairs and

Security Policy
A new multi-​hatted leader for the EU’s foreign, security, and defence affairs ema-
nated from the Treaty of Lisbon, merging the former position of the Commissioner
for External Relations and the previous High Representative for the CFSP, to form
the new High Representative of the Union for Foreign Affairs and Security Policy,
and its own body, the European External Action Service. This new position, the
technical equivalent of an EU foreign and defence minister, was envisaged to
put one face to the foreign and security policies of the EU and, more generally,
to improve the overall internal coherence of the Union in its actions. Since the
Treaty of Lisbon came into effect, just two people have held the position of High
Representative: Catherine Ashton of the United Kingdom, serving a full term from
2009 through to 2014, and the incumbent Federica Mogherini, the former Italian
Foreign Minister. Neither was in any way a high profile figure on the European
stage before taking the position, which could be seen as a signal that EU Member
States may have been hesitant to appoint a significant public figure to the role.
The creation of the formal High Representative role as the first Vice-​President
of the European Commission has been likened to ‘a feat of constitutional innov-
ation’.52 Despite not being a formal Foreign Minister, being supported by what
is not a full Ministry of Foreign Affairs, the Union’s unique character as an inter-
national organization means treatment from the other actors should be different,
given its unequivocal distinction from other international organizations to which
it could be compared. A report conducted by the EU’s finance watchdog, the
Court of Auditors, noted that ‘Member States and the EEAS [European External
Action Service] have not yet fully exploited the potential for synergies between
their networks of diplomatic representations’,53 despite noting the EEAS’s success
in its establishment, given the predicaments it was up against, both legally and
politically.

4.  External Challenges

The internal creation of the High Representative leads to commencing the exam-
ination of the external challenges the EU faces in diplomatic law. When acting in

52  Geert De Baere and Ramses A Wessel (n 29) 186.

53  Karel Pinxten, ‘The Establishment of the European External Action Service’ (European Court
of Auditors 2014) Special Report 11  <http://​www.eca.europa.eu/​Lists/​ECADocuments/​SR14_​11/​
SR14_​11_​EN.pdf> accessed 30 August 2014, at 22.
32

332 The European Union and Diplomatic Law

third States, it is in the European Union’s interest that, through its Delegations,
it does not become the additional twenty-​ninth diplomatic actor after all of its
Member States, but rather acts as an entity offering something new and dynamic.
Consequently, the external encounters for Delegations of the European Union
will now be analysed in the context of the challenges the EU faces within
international law.

4.1 Position under international law
The aforementioned legal personality of the EU was guaranteed and codified as part
of the Treaty of Lisbon within its own international legal order. However, the EU
had been concluding international agreements with third States for some time pre-
viously, suggesting a willingness of the international legal community to accept the
status of the EU externally, before achieving legal satisfaction internally. Proposals
to establish diplomatic relations are rarely turned down.54 This therefore would
indicate that the EU met Vienna Convention-​esque criteria for international legal
personality, despite its own drawbacks, and did not actually enhance or damage
its own capabilities internationally. While there are significant roadblocks in the
operation of external EU diplomacy, such diplomacy is occasionally welcomed by
smaller EU Member States, which do not have their own individual representation
in most third States. On the other spectrum, larger EU Member States now have
to justify the presence of some of their embassies for traditional diplomatic means,
as globalization and an ever more interconnected world takes hold.55

4.2 Establishment agreements
While it has been noted that ‘foreign offices prefer not to mention Vienna
[Convention]’,56 the European Union cannot do so. Tradition has seen offi-
cial diplomatic relations exist between entities that are States, which the Vienna
Convention gave modern legal effect to at the time. The EU is not a State,57 but an
active participant in diplomatic networks.58 Before Delegations of the European
Union are established in third States, a bilateral agreement between the EU and a
receiving State must be reached. The legal basis in Union law comes from Article
5(6) of the Council Decision which states that ‘the High Representative shall enter
into the necessary arrangements with the host State, the international organisation,

54  Denza (n 7) 25.

55  David Spence, ‘Taking Stock: 50 Years of European Diplomacy’ (2009) 4 The Hague Journal of
Diplomacy 235, 258.
56  Paul Behrens, ‘The Curious World of Diplomatic Relations’ The Guardian (London, 18 April
2011) <http://​www.theguardian.com/​commentisfree/​2011/​apr/​18/​vienna-​convention-​on-​diplomatic-​
relations> accessed 29 July 2014.
57  This has been confirmed by the Court of Justice of the European Union: Opinion 2/​13: Accession
of the European Union to the European Convention for the Protection of Human Rights and Fundamental
Freedoms (Court of Justice of the European Union) ECLI EU C 2014 2454.
58  Wessel and Van Vooren (n 9) 1350.
 3

External Challenges 333

or the third State concerned. In particular, the High Representative shall take the
necessary measures to ensure that host States grant the Union Delegations, their
staff and their property, privileges and immunities equivalent to those referred
to in the Vienna Convention on Diplomatic Relations of 18 April 1961’.59 This
conferral on the High Representative provides the EU with internal powers to
make external bilateral agreements with third States. Article 3 of the template
‘Establishment Agreement’ that the EU uses with third States at this juncture
brings in the Vienna Convention.60 While already a part of the European Union
Treaties, the Establishment Agreements in Article 3.3 of the template reiterate a
special onus that is placed on States hosting institutions and bodies of the EU (and
indeed to all EU Member States) that reciprocity is a core principle the EU stands
by for its diplomatic missions.
The European External Action Service has expressed that in the absence of the
protection of international diplomatic law through the Vienna Convention, they
are satisfied that the Establishment Agreements are sufficient and indeed, working
well so far.61 The EU has to date relied on the generous goodwill of the inter-
national diplomatic community to provide it with the necessary legal protection
that it affords nation States under the Vienna Convention. This ‘contracting-​in’
approach has not been fully settled in international law,62 but it should be noted
that such agreements are not binding on all States, but simply the two parties to
the arrangement—​the EU and the third State. Furthermore, while international
law may catch-​up in time with a firmer view of this EU action, they remain guid-
ing principles between the two parties, as opposed to legally binding and enforce-
able obligations. In the absence of an international convention of the EU’s own,
such as the Convention on the Privileges and Immunities of the United Nations
1946 that affords the UN and its specialized bodies, privileges and immunities
necessary to fulfil their functions,63 Establishment Agreements will continue to be

59  ‘L 201/​30: Council Decision of 26 July 2010 Establishing the Organisation and Functioning of
the European External Action Service (2010/​427/​EU)’ (n 26) 30.
60  The article reads: ‘(1) The Delegation of the European Union, its Head and its members, as
well as the members of their families forming part of their respective households, shall, on the terri-
tory of [THIRD COUNTRY], enjoy such privileges and immunities and be subject to such obliga-
tions as correspond to those laid down in the Vienna Convention on Diplomatic Relations of 18
April 1961 and respectively accorded to and assumed by Diplomatic Missions accredited to [THIRD
COUNTRY], the heads and members of those Missions, as well as the members of their families
forming part of their respective households. (2) The other provisions of the Vienna Convention on
Diplomatic Relations of 18 April 1961 shall be applicable mutatis mutandis. (3) Those rights and
privileges and immunities shall be accorded on condition that, in conformity with the provisions
of article 16 of the Protocol 7 on the privileges and immunities of the European Union annexed to
the Treaty on the European Union and the Treaty on the Functioning of the European Union, the
Member States of the European Union accord the same rights and privileges and immunities to the
Mission of [THIRD COUNTRY], to its Head and to its members, as well as to the members of their
families forming part of their respective households.’ This template does not appear to be publicly
available, but is set out in Pieter Jan Kuijper and others, The Law of EU External Relations:  Cases,
Materials, and Commentary on the EU as an International Legal Actor (OUP, Oxford 2013) 52.
61  Discussion with the Legal Affairs Division of the European External Action Service.
62  Wouters and Duquet (n 8) 164.
63  See Sanderijn Duquet and Jan Wouters, ‘Diplomacy, Secrecy and the Law’ in Corneliu Bjola
and Stuart Murray (eds), Secret Diplomacy: Concepts, Contexts and Cases (Routledge, 2015) 85–​107.
34

334 The European Union and Diplomatic Law

the normal course of procedure for the EU as a means of protecting its diplomats
and its Delegations.

4.3 Working with EU Member States

Particular EU Member States have taken issue with certain aspects of arrangements
that the European External Action Service and Delegations of the European Union
occasionally opt for. To take one example: the question whether statements and
actions taken by the High Representative are statements by the EU and its Member
States or the EU alone can be a point of contention. These are merely technicali-
ties, but again reflect the entirely legal nature that can be put on EU external action
when taken to task by an actor if it disagrees with a position. Decisions to open
or close Delegations of the European Union in a third State lie with the High
Representative, but must be agreed to by both the Council and Commission,64
with the number ever changing in an upward trend, resulting in about 140
Delegations throughout the world. While the Union itself has a direct presence
in most of the world’s States, this is supplemented with permanent missions of
EU Member States which have over 3,000 embassies or consulates between them,
often in the same places as the Delegations of the European Union. If the num-
bers are stacked, the External Action Service has 3,750 staff at its disposal, mixed
between its base in Brussels and all of its Delegations around the globe, compared
to the diplomatic corps of its Member States which amounts to just under 100,000
officials. On matters of finance and expenditure, the disparity between the two is
even more divergent with approximately €476 million being spent annually by the
European External Action Service, versus €7.5 billion by the twenty-​eight foreign
ministries of EU Member States.65 This all points to the fact that despite having a
worldwide presence,66 that the EU is outnumbered, and vastly outspent. There is
a reasonable assertion therefore that Delegations of the European Union function
and operate at very different levels of proficiency in different third States given the
complex competence differentials between the EU and its Member States, and the
willingness of some Member States to allow Delegations to function in particular
ways in third States. This is despite the regime the third State has in place for allow-
ing an enhanced international organization like the Union to adopt rules normally
accustomed to normal entities like nation States availing themselves of Vienna
Convention principles.67

64  Council Decision, article 5(1).

65  European External Action Service, ‘The HR and the European External Action Service from the
Practitioner’s Viewpoint’ (Brussels, June 2014, Presentation).
66  The EU has more missions in third States than most small-​and medium-​sized Member States.
67 The difficulty the EU faces has proven to be even more difficult in international organiza-
tions. See eg Maximilian B Rasch, The European Union at the United Nations: The Functioning and
Coherence of EU External Representation in a State-​Centric Environment (Martinus Nijhoff Publishers,
Leiden 2008).
 35

Recent Developments 335

5.  Recent Developments

The EU is in many ways no different from any other diplomatic actor, in that it
faces an array of diplomatic issues that need to be addressed. It could even be said
that for the Union, its own construction plagues it with intricacies. As such, the
External Action Service and its Delegations have to be constantly equipped with
the right apparatus in order to meet the changing environment of international
diplomacy. While it may be questioned if diplomacy under the Vienna Convention
will survive or if it is even needed in many first world States, the EU demonstrates
a willingness to be ‘part of the club’ while it is still around. This is not a question
for lawyers on diplomacy’s longevity, but legal solutions will be needed when the
time arises. The lack of international recognition for the European External Action
Service and its Delegations has not dented the appetite for them to continue in
setting up office-​sharing arrangements with its Member States in co-​location ini-
tiatives. Spain has decided and agreed through a Memorandum of Understanding
to establish their new embassy within premises belonging to the External Action
Service in at least one location.68 Although a number of these initiatives exist,
only a small number of EU Member States have signed up to such arrangements
to date.69 It may take more time than anticipated for additional Member States to
come around to this practice of developing multiple representations of Member
States under one roof, but a beginning of such initiatives can be observed. This
kind of initiative, amongst others, has been given the title of a ‘diplomatic entre-
preneur’.70 In terms of rule-​making, with current Delegations competences con-
sented to by EU Member States, and third States accepting the terms laid out under
the Establishment Agreements, the established practice thereby verifies Vienna
Convention principles and results in the EU’s legal standing being enhanced, giv-
ing new legal principles with a ‘contracting in’ arrangement. Just as in consular law,
this lack of firm legal clarity could stoke international tensions should discrepan-
cies and disagreements occur in the future.71 This is not the first time that the EU
has alternated international law and practice by processes which have been deemed
truly remarkable.72 Previously, the legal personality officially bestowed upon the
EU had also been granted along similar lines to the Association of Southeast Asian
Nations (ASEAN) by its own Member States under its Charter.73

68  ‘EEAS and Spain Sign Memorandum of Understanding on Sharing Diplomatic Premises in
Myanmar/​Burma’ <http://​www.eeas.europa.eu/​statements/​docs/​2014/​140210_​02_​en.pdf> accessed
8 June 2014.
69  The EEAS have to date signed a number of co-​location MoUs with Austria, the Czech Republic,
Germany, Denmark, Finland, France, Italy, Luxemburg, Netherlands, Spain, and the United Kingdom.
70 See generally Staffan Hemra, Thomas Raines, and Richard Whitman, ‘A Diplomatic
Entrepreneur:  Making the Most of the European External Action Service’ (Chatham House
2011) Chatham House Report.
71  Annemarieke Vermeer-​Künzli (n 50) 995.
72  Frank Hoffmeister, ‘The Contribution of EU Practice to International Law’ in Marise Cremona
(ed), Developments in EU External Relations Law (OUP, Oxford 2008) 127.
73  Roberts (n 24) 290.
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336 The European Union and Diplomatic Law

While the Vienna Convention and international law does not prevent the EU
from engaging in diplomacy in a way that it is competent to adopt, further profi-
ciencies and competence transfer may give rise to an upsurge in conflict between
Union law and international law. This is especially true if EU Delegations continue
to operate like normal embassies as opposed to something unique and special as
they are at present. A  court judgment, either from the Court of Justice of the
European Union or the International Court of Justice is something the Union’s
diplomatic actors would be keen to shy away from, and to avoid altogether. The
self-​conducted review of the External Action Service in 2013 pointed to a range
of issues and predicaments that it as a body encounters on a regular basis as it goes
about its work.74 Such deficiencies in its own opinion of itself have prompted a
number of scholars specializing in the field of EU external relations law to recom-
mend a number of changes to the wording of the Council Decision that gave the
External Action Service its legal mandate.75 Despite available evidence, any calls
from the External Action Service for a revised legal framework to correct their
apparent failings arising from their self-​assessment may fall upon deaf ears as EU
Member States may prefer to leave the External Action Service to its current state
for the time being, at least under the current European Union Treaties. In either
manner, the EU’s practice is informally changing the law.

6. Conclusion

The central question this chapter sought to answer through explanation and dem-
onstration is how the EU, its External Action Service, and its Delegations fit
into the existing international legal framework that safeguards diplomatic activ-
ity. From examining developments both internal and external to the Union and
research already completed in this field, some conclusions can be drawn on the
European External Action Service’s current status and its international legal dip-
lomatic status, as well as its probable future direction in diplomacy. Shortcomings
are evident, as international law has not kept pace with international practice. It
can be claimed that the current Vienna Convention requires refinement to reflect
the twenty-​first century.76 Whilst acknowledging the European External Action
Service as an innovation of the EU’s own making, the legal dimension of the oper-
ation of its Delegations can prove difficult. Despite this, it is apparent that third
States are accepting the Delegations of the European Union as diplomatic actors in

74  European External Action Service, ‘EEAS Review 2013’ <http://​eeas.europa.eu/​library/​publications/​

2013/​3/​2013_​eeas_​review_​en.pdf> accessed 8 August 2013.
75  Steven Blockmans and others, ‘EEAS 2.0: Recommendations for the Amendment of Council
Decision 2010/​427/​EU on the European External Action Service’ (Centre for European Policy
Studies 2013) <http://​www.ceps.eu/​system/​files/​EEAS%202%200%20RecommendationsSR78_​0.pdf>
accessed 26 August 2014.
76 Jan Wouters, Sanderijn Duquet, and Katrien Meuwissen, ‘The Vienna Conventions on
Diplomatic and Consular Relations’ in Andrew F Cooper, Jorge Heine, and Ramesh Thakur (eds),
The Oxford Handbook of Modern Diplomacy (OUP, Oxford 2013) 526.
 37

Conclusion 337

their respective nation States.77 The Vienna Convention is monopolized by nation

States, leaving the European Union to continuously develop its legal mechanisms
to build up an innovative method of Vienna Convention application for its diplo-
matic network as it continues to mature into a complete global actor. In effect, this
is circumventing international law up to now, and theoretically extends the Vienna
Convention’s scope of application, mainly due to the fact there has been little
development in formal international law on this issue. This innovation has been
central to the EU’s strategy of getting a foothold, as it ‘contracts-​in’ the Vienna
Convention as a legal instrument, doing bilateral agreements in a multilateral
regime. The EU is proving there is a clear way of skirting outdated international
legal texts by negotiating and concluding Establishment Agreements with third
States, using principles of the Vienna Convention in order to obtain membership
of their capital cities diplomatic club. The Union is therefore operating without
the same international legal protections as States. While this by-​passing may be
occurring with or without the firm understanding by third States of what the EU
is doing, such action by the External Action Service for its Delegations is actually
solidifying the character of the EU on the global diplomatic stage, with the EU’s
diplomatic missions slowly being treated more like other permanent missions of
nation States. Such progression for the EU and the under-​regulation of its status
internationally may present further conflict between Union law and international
law at a juncture at some point in the future. The mere existence of a functioning
European External Action Service, and its Delegations, are a noteworthy develop-
ment for the legal field.
Third States to date have been willing to provide the EU and its Delegations
with diplomatic status, equivalent to that contained within the Vienna Convention
through the bilateral agreements that have been reached. The EU’s setup is reli-
ant on its external partners willing to accept its existence on a legal and political
level, whilst the EU’s own treaties reflect international legal norms. The fact that
Delegations of the European Union actively participate in diplomatic affairs and
are accepted by its Member States contributes to third States’ inclination to allow-
ing the EU to engage in diplomatic activity. Such willingness demonstrated by
non-​EU Member States to accept that the EU, although not a State, should be
treated like one for the purposes of diplomatic relations may suggest that there may
not be overwhelming opposition to allowing changes to the Vienna Convention
to occur in favour of non-​States such as the EU. This reconsideration of the inter-
national law in this field would have to take heed of the likelihood that opposition
to such proposals may come from other prominent international organizations or
bodies who would claim unfair treatment. The EU however has proven itself to be
unlike other international organizations. Without this acceptance of the EU and
Vienna Convention principles by third States, the EU would be without any place
within the diplomatic framework. However, if the text of the Vienna Convention

77  Edith Drieskens, ‘What’s in a Name? Challenges to the Creation of EU Delegations’ (2012) 7
The Hague Journal of Diplomacy 51, 52.
38

338 The European Union and Diplomatic Law

was to change, it would be akin to opening up Pandora’s Box, with not just EU
matters being put on the table, but also the assembly of other discrepancies that
would be found with in the Vienna Convention today.
There remain some unsettled legal problems, as State elitism is dragging down
the EU. Despite its own array of competences to act upon, the EU is still trapped
and limited from participating fully in diplomatic affairs, although changes have
been taking place for the Union both practically and legally, internally and exter-
nally. The European External Action Service is effectively a ‘prototype EU foreign
ministry’78 that will still need some years to develop further.79 In the meantime,
it is increasingly in a position to influence its own Member States into acting in
particular ways that are conducive to improving coherence in EU foreign policy
and external relations. The existing evidence supports the view that the lack of
formal recognition for the EU and its current legal framework within the Vienna
Convention does not prevent the EU from expanding its reach as it continues to
cast itself as a credible and coherent international actor. With the External Action
Service taking on a greater range of tasks internally within the Union, such as intel-
ligence cooperation,80 it is likely the External Action Service will continue to be
involved externally on a diplomatic level for now. The EU has cleverly been using
every legal avenue available at its disposal to avoid as much conflict with the arti-
cles contained with in the Vienna Convention as possible. This is despite some EU
Member States attempting to put a halt to any further expansion of EU activity
in certain areas, and particularly in international organizations. While legal-​diplo-
matic issues at international organizations are generally of a complex nature, the
position of the EU can be even more convoluted. Until there is such a time when
international law begins to formally recognize the EU and its practices, outstand-
ing questions shall remain on the legal and policy issues.
The Union’s system of diplomacy needs to be seen from a much broader perspec-
tive,81 and must be allowed further time to evolve more generally. It is recognized
as a diplomatic actor, and accordingly, a major hurdle is already overcome. That
being said, globalization challenges the sovereignty of nation States.82 Delegations
of the European Union are continuing to reformulate the views the wider world has
on the strict terms of diplomatic activity. This commotion that was traditionally

78  Frauke Austermann, ‘The European External Action Service and Its Delegations: A Diplomatic
Service of Different Speeds’ (2015) 1 Global Affairs 51, 52.
79  For a discussion on the type of actor that the External Action Service is, see Rebecca Adler-​
Nissen, ‘Theorising the EU’s Diplomatic Service: Rational Player or Social Body?’ in David Spence
and Jozef Bátora (eds), The European External Action Service:  European Diplomacy Post-​Westphalia
(Palgrave Macmillan, London 2015) 17–​40.
80  Mauro Gatti, ‘Diplomats at the Bar: The European External Action Service before EU Courts’
(2014) 39 European Law Review 664, 666.
81  Michael H Smith, ‘The EU as a Diplomatic Actor in the Post-​Lisbon Era: Robust or Rootless
Hybrid?’ in Joachim A Koops and Gjovalin Macaj (eds), The European Union as a Diplomatic Actor
(Palgrave Macmillan, London 2015) 26.
82 Pia Kerres and Ramses A  Wessel, ‘Apples and Oranges? Comparing the European Union
Delegations to National Embassies’ Centre for the Law of EU External Relations (TMC Asser
Institute 2015) 9.
 39

Conclusion 339

preserved for nations which engaged in diplomacy and friendly relations between
entities and States through the exchange of Ambassadors has now well and truly
extended beyond the traditional framework. The Vienna Convention catered spe-
cifically for entities possessing statehood, reflecting the international environment
of State relations, sixteen years after the establishment of the United Nations. It
would have been simply unattainable for the framers of the VCDR, and subse-
quent treaties like the VCCR, to foresee the future direction of powerful non-​State
supranational entities like the EU develop into fully-​fledged diplomatic actors.
Whenever the next Intergovernmental Conference will be formed to look at the
EU Treaties, there is a reasonable prospect that Delegations of the European Union
may flourish, given their apparent success since the Treaty of Lisbon in the short
time they have been in operation.83 Convergence of Member States’ pragmatic
functions may occur, and thus, the opportunities the EU has to develop its own
competences are unique, and should not be held up indefinitely. That being noted,
Member States are sensitive about the role of the EU and its Delegations abroad.
Equally, the world’s understanding of the EU as a diplomatic actor is greater now
than it has been previously.
It would appear to be to be a core aspiration of the EU to one day obtain
unified diplomatic representation on behalf of the entire EU and its Member
States—​to have embassies without being a State, in place of current EU Member
States. This long-​term aim however is being done on a gradual basis so as to not
spook any Member States as the Union gradually appears like a full nation-​State in
the making, but paradoxically, Member States are also aware that there are chan-
ging demands that give rise to a greater need for the EU to act together in many
instances. The External Action Service recognizes this and is cognizant of the fact
that developing a diplomatic service for a multi-​layered institution like the EU
does not occur in a short timeframe, but rather over a prolonged period of years,
and possibly decades. This patience and understanding in this regard is admir-
able, but such hope must be persistent enough for international diplomatic law to
catch up with the EU’s developing external nature. Whilst the Delegations of the
European Union are still not on par with the permanent representations of some of
its Member States in third States, improvements over the last number of years are
becoming increasingly visible, strengthening the Union’s ability to conduct diplo-
matic activity within the confines of the legal framework that currently surrounds
it. A long road has been travelled from the non-​diplomatic information and com-
munication offices in the 1950s, to the Delegations as near-​full diplomatic actors
today. With this progress in the external environment, however, there appears a
note of caution for the internal structure. The long-​term future of the External
Action Service as a functionally autonomous body is always up for discussion, with
the Commission being best-​placed to replace its functions at a given opportunity.

83 Graham Butler, Review of Foreign Affairs Policy and External Relations:  Discussion,
Dublin:  Houses of the Oireachtas, Oireachtas Joint Committee on Foreign Affairs and Trade, 16
January 2014. (Presentation).
340

340 The European Union and Diplomatic Law

This fact demonstrates that the External Action Service is subject to the political
wind of Union affairs.84 A report commissioned by the European Parliament on
External Action has issued a number of recommendations for the improvement of
EU diplomacy,85 and such measures may be addressed in the future.
Just as the Vienna Convention codified the practice of diplomacy, the EU is
operating somewhat akin to what nation State diplomats did before international
treaties existed, and is thus operating without the necessary international legal
protection. Whether the EU has been a clear success or failure yet in diplomacy,
is still too early to say, but it will depend on the position of EU Member States.
Legal documents can only provide one perspective on achieving the EU’s status in
international diplomacy. Notwithstanding the legal innovation and creativity of
the EU, in 2013 the High Representative said the establishment of the European
External Action Service and the evolving Delegations were like trying ‘to fly a
plane while still bolting the wings on’.86 What we can say now is that even if the
wings are eventually attached, it does not necessarily result in the EU flying like a
bird in the fields of diplomacy and diplomatic law just yet.

84  For discussion on this see Hrant Kostanyan, ‘Analysing the Power of the European Union’s
Diplomatic Service:  Do the EU Member States Control the European External Action Service?’
(2016) 11 The Hague Journal of Diplomacy 26.
85  Jan Wouters and others, ‘The Organisation and Functioning of the European External Action
Service: Achievements, Challenges and Opportunities’ (European Parliament Directorate-​General for
External Policies of the Union 2013) 87–​88.
86  European External Action Service, ‘EEAS Review 2013’ (2013) 3.
 341

19
Skirting Officialdom
Sub-​State Diplomats and the VCDR Lessons from
Scotland and Wales

Francesca Dickson

1. Introduction

The Vienna Convention on International Relations is a central document in inter-

national law, demarcating who ‘counts’ as an official diplomat and the ways in
which diplomacy between sovereign States must be carried out. As such it can
perhaps be taken as a high water mark in diplomatic theory. Fifty years on from
its incarnation, questions have been raised about the extent to which the treaty
reflects current diplomatic practice. The paradiplomacy of sub-​State governments
offers a unique vantage point from which to address such questions. How this
diplomacy manifests, how it differs from sovereign-​States, and the interaction
between diplomats and paradiplomats may yet tell us something about the status
and relevance of the VCDR as it enters its sixth decade. Can sub-​State diplomats
carry out a similar range of activities to their State-​level contemporaries? Does
being part of an official, diplomatically accredited mission alter the substance of
sub-​State ‘diplomacy’? In what sense is paradiplomacy supplementary to, or in
competition with, State diplomacy? These are all questions addressed in this chap-
ter, where the international representations of Scotland and Wales, as devolved
regions of the UK, are considered.
Indeed, when trying to place paradiplomatic activities in the context of other
pressures on the traditional diplomatic landscape as described and accounted for by
the VCDR, the most obvious ‘match’ for its distinct challenges are those also posed
by the increasingly assured diplomatic identity of the European Union. Much of
what Wouters and Duquet, in their 2012 article on the EU and international
diplomatic law, point to in terms of the quasi, State-​like but non-​State features
of the EU as an international actor could also apply to sub-​State authorities.1

1  Jan Wouters and Sanderijn Duquet, ‘The EU and International Diplomatic Law: New Horizons?’
(2012) 7(1–​2) The Hague Journal of Diplomacy 31–​49.

Skirting Officialdom: Sub-State Diplomats and the VCDR Lessons from Scotland and Wales. Francesca
Dickson. © Francesca Dickson, 2017. Published 2017 by Oxford University Press.
342

342 Skirting Officialdom

Both the EU and various sub-​State authorities try and influence foreign govern-
ments, at local and national level, and have formal arrangements with such foreign
governments—​and occasionally with international organizations—​and maintain
a network of overseas representations that often have a similar functional remit as
traditional nation-​State Embassies.2 Where the two cases diverge most substan-
tially is in the ability of sub-​State governments to formally ‘opt-​in’ to the VCDR
through operating out of the official diplomatic missions of its ‘host’ State. It is this
unique, chameleon-​like ability to choose the status and character of its diplomatic
representations that makes the international activities of sub-​State governments a
potentially illuminating case study in international law, and in particular the ways
in which the VCDR relates to non-​State diplomacy.

2.  Paradiplomacy and Diplomatic Law

In contrast to the European genesis of its better-​known cousin, multi-​level gov-

ernance, the concept of paradiplomacy initially developed with reference to the
(overwhelmingly economic) external activities of US States, ‘para-​’ being derived
from the word ‘parallel’.3 Although a distinct body of ‘paradiplomatic’ literature
can be discerned from the late 1980s,4 it has been more recently, perhaps through-
out the last decade, that there has been a ‘normalization’ of the phenomenon.5 In
particular, the activities of ambitious European regions have proved fertile ground
for paradiplomatic research,6 whilst more recently studies of ‘developmental’

2  Wouters and Duquet identify these features in the EU’s external identity, ibid 32.
3  Robert Kaiser, ‘Sub-​State Governments in International Arenas: Paradiplomacy and Multi-​Level
Governance in Europe and North America’ in Stéphane Paquin and Guy Lachapelle (eds), Mastering
Globalization: New Sub-​States’ Governance and Strategies (Routledge, London 2005) 92.
4  See Ivo Duchacek, ‘Multicommunal and Bicommual Polities and Their International Relations’
in I Duchacek, D Latouche, and G Stevenson (eds), Perforated Sovereignties and International Relations:
Trans-​Sovereign Contacts of Subnational Governments (Greenwood Press, New York, 1988) 3–​29; Ivor
Duchacek ‘Perforated Sovereignties: Towards a Typology of New Actors in International Relations’ in
HJ Michelmann and P Soldatos (eds), Federalism and International Relations: The Role of Subnational
Units (Clarendon Press, Oxford 1990) 1–​34; Daniel Latouche, ‘State Building and Foregin Policy
at the Subnational Level’ in Ivo Duchacek, Daniel Latouche, and Garth Stevenson (eds), Perforated
Sovereignties and International Relations: Trans-​ Sovereign Contacts of Subnational Governments
(Greenwood Press, New York 1988) 29–​43; John Kincaid, ‘Constituent Diplomacy in Federal Polities
and the Nation-​state: Conflict and Co-​operation’ in H Michelmann and Panayotis Soldatos (eds),
Federalism and International Relations: The Role of Subnational Units (Clarendon Press, Oxford 1990)
54–​77; Panayotis Soldatos, ‘An Explanatory Framework for the Study of Federated States as Foreign-​
Policy Actors’ in H Michelmann and Panayotis Soldatos (eds), Federalism and International Relations:
The Role of Subnational Units (Clarendon Press, Oxford 1990) 34–​53.
5 Noe Cornago ‘On the Normalization of Sub-​State Diplomacy’ (2010) 5 (1–​2) The Hague
Journal of Diplomacy 11–​36.
6  See Ugalde Zubiri, ‘The International Relations of Basque Nationalism and the First Basque
Autonomous Government (1890–​1939)’ (1999) 9(1) Regional and Federal Studies 170–​185; Elin
Royles, ‘Small, Smart, Successful:  A  Nation Influencing the Twenty-​ First-​
Century World? The
Emerging Welsh Paradiplomacy’ (2010) 23 Contemporary Wales 142–​70; David Criekemans ‘Foreign
Policy and Diplomacy of the Belgian Regions:  Flanders and Wallonia’ 2010 Discussion Papers in
Diplomacy, Netherlands Institute of International Relations (‘Clingendael’).
 34

The UK’s Devolved Regions and the VCDR 343

paradiplomacy outwith the European and North American contexts have been
visible within the sub-​discipline.7 As with multi-​level governance, the framework
of paradiplomacy can and has been used to consider and refer to external relations
other than those of regions. City diplomacy is often referred to as paradiplomacy,
yet is quite different from regional paradiplomacy due to the fact that it often lacks
an equivalent representational tone. Therefore, for the purposes of this discussion,
we will look only at paradiplomacy as it refers to the external relations of regions.
For those studying paradiplomatic practices, there is a central paradox: how
do we reconcile the international presence of sub-​State governments with the fact
that they are not recognized as possessing any degree of sovereignty? As non-​sov-
ereigns, paradiplomats have no independent standing under the VCDR treaty,
yet—​undoubtedly—​their diplomacy often looks and sounds very similar to that
carried out by States. Sub-​State identity is an increasingly salient one and sub-​State
governments, as diplomatic agents possess both representational qualities and offi-
cial resources—​highly prized diplomatic commodities. Therefore, the diplomacy
that they undertake stands apart from that of other non-​State actors—​NGOs,
Diasporas, multi-​national companies—​precisely because of its similarity to state
diplomacy. Their relationship to this key treaty in diplomatic law is thus both
complex and potentially illuminating.
Sub-​State governments represent a key study in the ways that new actors are
able to enter into international politics and become diplomats. In this case, a key
feature of the new diplomacy in question is its hybrid status—​sub-​State diplo-
mats are at once ‘sovereignty bound and sovereignty free’ possessing governmental
qualities yet without an overarching responsibility for foreign affairs.8 Away from
the institutional checks and balances that come with such a responsibility, along
with public attentions and expectations, sub-​State governments face a less rigid
operational context than their State-​level contemporaries. How this impacts on the
composition, and quality, of their diplomatic endeavours is a wider question that
will be addressed both in this and subsequent chapters. In respect to the VCDR,
the most pertinent question would seem to be whether the legal and political dif-
ferences that the treaty identifies between sub-​and State-​level diplomacy actually
result in a meaningful divergence in their diplomatic practices.

3.  The UK’s Devolved Regions and the VCDR

In this chapter we will be considering the UK’s constitutional provisions in rela-

tion to sub-​State diplomacy, and the activities of the Welsh and Scottish devolved
governments in an international sphere. There are many other states—​unitary and

7 Most recently Fritz Nganje, ‘The Developmental Paradiplomacy of South African

Provinces:  Context, Scope and the Challenge of Coordination’ (2014) 9(2) The Hague Journal of
Diplomacy 119.
8  Brian Hocking, ‘Regionalism: An International Relations Perspective’ in Michael Keating and J
Loughlin (eds), The Political Economy of Regionalism (Routledge, Oxford, 1999) 90–​111.
34

344 Skirting Officialdom

federal—​that permit their sub-​State territories to carry out paradiplomatic activi-
ties, to various extents. The Belgian regions have the largest degree of international
autonomy: representatives of Flanders and Wallonia have Belgian diplomatic status
and are permitted to sign official international treaties, in fact they are often solely
responsible for doing so.9 Other regions, on the other hand, do not always bene-
fit from diplomatic status for their officials. Catalonia, for example has tried and
failed to secure it.10 Some large European regions, on the other hand, maintain a
significant amount of domestic autonomy but are generally content with State-​
level diplomatic representation. Bavaria, for instance, has multiple overseas trade
and investment offices reflective of its size and GDP, yet only two Government
representations abroad—​in Quebec and the Czech Republic, both of which build
on historical ties.11
The UK’s arrangements are relatively permissive, falling roughly at a mid-​point
in terms of the international activities that sub-​State governments are able to engage
in. International relations—​including relations with the European Union—​remain
firmly the responsibility of the UK Government and Parliament. There is, however,
a clear recognition in the Memorandum of Understanding between the UK and its
devolved regions of such devolved regions ‘interest in international affairs where
they touch on devolved responsibility’.12 Specific concordats (documents setting
out the specific principles and expectations underpinning working arrangements
between the UK Government and devolved authorities), supplementary to the
MoU, enumerate in greater detail arrangements for international and European
affairs in the context of devolution. Three passages are of particular relevance to the
devolved regions’ diplomatic status, and are worth citing in detail.
As regards representation in the European Union, the concordat sets out an
arrangement whereby devolved regions can maintain direct representation so
long as it forms part of the wider UK representation in Brussels. According to
the Concordat on Co-​ordination of European Issues, devolved administrations are
able to take part in ‘less formal’ discussions with EU institutions and with other
EU Member States. They are also permitted to establish offices in Brussels to assist
with their direct relationships—​both with other regional governments and with
the EU itself. The important proviso here is that these offices must serve the exer-
cise of their specific devolved powers and functions, and must be consistent with

9 Jan Bursens and Jana Deforche, ‘Going Beyond Paradiplomacy? Adding Historical
Institutionalism to Account for Regional Foreign Policy Competences’ (2010) 5(1–​2) The Hague
Journal of Diplomacy 151–​71, 162.
10  Professor Michael Keating addressed these issues in his comparative study undertaken as part
of an enquiry carried out by the Scottish Parliament’s European and External Affairs Committee
in 2010.
11  Interview with author, senior official of the Bavarian State Government, June 2013.
12  The UK Government, Cabinet Office, ‘Memorandum of Understanding and Supplementary
Agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers,
and the Northern Ireland Executive Committee’ (October 2013) Section B4, Common Annex on the
Concordat on Co-​ordination of European Policy Issues. The MoU and its concordats can all be found
here: <https://​www.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​316157/​MoU_​
between_​the_​UK_​and_​the_​Devolved_​Administrations.pdf>.
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The UK’s Devolved Regions and the VCDR 345

the ‘responsibility of the UK Government for relations with the EU’. These entitle-
ments are explicitly not intended to alter the pre-​existing ‘status and functions of
the UK Permanent Representation in Brussels as the institution representing the
United Kingdom’. Operationally, the Brussels offices of devolved administrations
form part of the official diplomatic structure of the UK’s EU representation, UK
Rep, and as such their staff have British diplomatic status and are registered with
the Belgian authorities accordingly.13
The status of the devolved administrations in Brussels is thus reasonably
clear: they have diplomatic status because they form part of an official UK rep-
resentation. Under the VCDR they are diplomatic agents of a sovereign State—​
the UK. So far, so straightforward. The key institutions of the European Union
are restricted to Member States, naturally limiting the role of sub-​State govern-
ments and creating a fairly ‘neat’ division between official and unofficial practices
in Brussels. When we turn to the international role sub-​State governments can
play in a global setting, the picture becomes more complex. Under the heading
‘Representation Overseas’ in the concordat on International Relations, Common
Annex (D4), the devolved administrations are permitted to establish overseas
offices within the framework of their responsibility for devolved policy. Of most
relevance here are those responsibilities which pertain to providing information on
devolved matters to the public and regional governments and institutions, as well
as the promotion of trade and inward investment. These offices must be established
‘in consultation’ with the FCO (the UK Foreign and Commonwealth Office), and
‘where appropriate’ these representations may form part of official UK Diplomatic
or Consular Missions. When this latter option is selected, devolved representatives
would then be permitted to ‘make use of the diplomatic bag, the FCO telegram
and other communications systems’, as well as be accredited with diplomatic sta-
tus.14 Here, we see that sub-​State governments are presented with a clear choice
in their overseas representation: be part of an official UK mission and receive the
resources and privileges associated, or ‘go it alone’. The choice is also therefore
whether to ‘opt in’ to the VCDR through operating as a subsidiary of the UK
Diplomatic or Consular mission, or operate outside it as representatives without
diplomatic status. The passage (D4.23) further makes reference to a distinction
between official and unofficial activities, something that will be explored in further
detail as part of this chapter.
Lastly, the same passage makes clear the UK’s retention of overall authority and
responsibility under the VCDR. It asserts that the FCO will continue to be respon-
sible for policy on diplomatic and consular relations, both with third countries

13  Paragraphs B4.26 and B4.27 of the Concordat on Co-​ordination of European Union Policy
Issues, part of the Memorandum of Understanding between the United Kingdom Government, the
Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee (2013).
14  Paragraph D4.23 of the Concordat on International Relations. Part of The UK Government,
Cabinet Office ‘Memorandum of Understanding and Supplementary Agreements Between the
United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland
Executive Committee’ (October 2013).
346

346 Skirting Officialdom

and on ‘all matters concerning international organisations represented in the UK’.
As part of this maintenance of authority, the FCO will remain the channel for
all official communications ‘on matters relating to Foreign and Commonwealth
consulates and international organisations’, including their staff in devolved terri-
tories. Importantly, the passage includes a procedure for the immediate reporting
of any diplomatic representations made to devolved authorities, and indeed any
suspected breach of diplomatic protocol taking place within their devolved com-
petences, leaving the FCO to take any appropriate action under the VCDR or any
applicable Consular Convention.
On the basis of the above, and taking the documents in their entirety, we can
make a series of suppositions as to the diplomatic status of the UK’s devolved gov-
ernments. The first of these is that they can, indeed, be represented internationally
by their own diplomatic agents. The limits to this representation are that, in order
to conduct ‘official’ diplomacy, sub-​State diplomats must ‘opt-​in’ to the VCDR
and operate out of the UK’s overseas Embassies and Consulates, being under their
auspices and ultimately accountable to the FCO. The second, however, is that rep-
resentatives of Wales, Scotland, and Northern Ireland do not have to operate out
of such UK-​wide missions. Instead, they can—​in ‘consultation’ with the FCO—​
establish independent offices overseas, but such offices do not benefit from the
status of an official diplomatic mission. The outstanding question is therefore, with
official diplomatic status within the grasps of the UK’s sub-​State governments—​
why would they choose to operate without it? What is the value of the diplomatic
commodities listed in the second extract above—​the diplomatic bag and official
communications systems—​for Wales, Scotland, and Northern Ireland? What types
of unofficial diplomacy can they conduct outside of this system?

4.  Wales’ Overseas Offices

A consequence of devolution in 1999 was the new ability for Wales to ‘autono-
mously engage with the world outside’.15 This, according to a senior Welsh
Government advisor, stood in contradistinction to the international strands of the
previous Wales Office’s activities, where engagement was ‘very much as a sub-​set
of the UK’. Such an autonomous platform has resulted in two streams of external
engagement, one driven by trade and investment and one driven by policy—​‘the
ability to influence policy or to take part in policy formation’.16 It is within this
context that the status and activities of Wales’ overseas offices must be considered.
The Welsh Government has an overseas network consisting of fourteen offices
(including its representation in Brussels) and around thirty-​two staff, alongside
twenty to twenty-​five officials working on external relations and related issues

15  Interview with author, senior Welsh Government advisor March 2013. 16 ibid.
 347

Wales’ Overseas Offices 347

within the Welsh Government’s Offices at home in Wales.17 A separate, relatively

new, office in London has been established to promote Wales to overseas inves-
tors and visiting VIPs. There is also a separate team of three staff based in Cardiff
looking after the Wales for Africa programme and leading on fair trade issues.
Within Wales itself the First Minister takes responsibility for international issues—​
he is officially the Minister for Europe, Wales for Africa, and International and
External Relations. Other departments—​economy, science and transport, educa-
tion, and culture—​also have a role in specific international policy areas. Wales is
also a member of several multilateral fora—​the network of regional governments
for sustainable development (NRG4SD), the conference of European regions with
legislative power (REGLEG), the conference of peripheral maritime regions of
Europe (CPMR).
Reflected in these examples, the European policy context is really where Wales’
international activities are most closely focussed. Partly this is because of the insti-
tutional access points provided to regions within European structures and policy
making processes, and partly it is due to the direct impact of European policy on
Wales itself. Indeed, a key Welsh government advisor made clear that outside of
this European context, the ability of sub-​State governments to contribute is greatly
weakened; ‘different parts of the world have different resource positions, they have
different political traditions . . . and it becomes correspondingly more difficult to
operate at a global level at the sub-​state level, and much less meaningful I think’.18
The Welsh Government published their first written international strategy in
July 2015, detailing a number of objectives:  strengthening the Welsh economy,
enhancing the profile and reputation of Wales, developing effective bilateral and
multilateral relationships; co-​operating in the sharing of information and best prac-
tice; increasing Wales’ influence with ‘appropriate’ multilateral and international
organizations and contributing to sustainable development and ‘responsible global
citizenship’. The strategy stresses the ‘ultra-​competitive’ global environment facing
Wales, and the need to seek out opportunities in key locations, nurturing links and
relationships built over time.19
At a country level, Wales has representation in Belgium, China, the UAE,
India, Ireland, Japan, and the USA. These overseas offices work closely with Welsh
Government Ministers, who, according to the international strategy ‘have a crucial
role in supporting business and diplomatic relationships at the highest levels’.20
But what type of ‘diplomacy’ do the Ministers and overseas offices carry out? Of
Wales’ fourteen international offices outside of the UK, all three Chinese offices
alongside representations in Mumbai and Japan are housed outside of British

17  Wales’ overseas representation was once much more extensive—​with representations in Australia
and many European countries, but—​like many other sub-​State governments—​was scaled back rather
drastically in what was widely reported to be a cost-​cutting exercise.
18  Interview with author, senior Welsh Government advisor March 2013.
19  Wales in the World: The Welsh Government’s International Agenda 2015. The document can
be accessed here: <http://​gov.wales/​topics/​international/​publications/​international-​agenda/​?lang=en>.
20 ibid.
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348 Skirting Officialdom

Embassies or Consulates. In Shanghai, the Welsh Government representative has
recently relocated to British House, which—​while outside the Consulate—​houses
the British Council and the China Britain Business Council. In Dubai, Bangalore,
Ireland, in all five USA offices, and in Brussels, Welsh Government representations
form part of British Embassies, British Consulates, British High Commissions or,
in Brussels, UKREP.21 Numerically, this means that five out of fourteen offices
operate outside of the VCDR, its representations are part of an ‘unofficial’ pool
of diplomacy that takes largely on a region-​region basis. As such there seem to be
some identifiable benefits to such independent representation that make forgoing
co-​location with the FCO—​and the associated diplomatic resources—​worthwhile.
The implications of this will be considered in greater detail in a subsequent section
of the chapter.
Within Wales itself, the international affairs department carries out functions
that may appear similar to the FCO; ‘we advise on diplomatic issues, protocol’ as
well as ‘working to raise the profile of Wales internationally’.22 While there was
some suggestion that colleagues in Whitehall would take umbrage at the sugges-
tion that Wales has its own foreign office, functionally the department represents
its ‘nearest equivalent’.23 Nonetheless, the Welsh Government staff working both
in and out of Wales are not usually identified as diplomats, despite their day-​
to-​day work being ‘the diplomatic side’ of external relations.24 The current First
Minister Carwyn Jones instigated a reorganization shortly after he took office in
2011 and brought these overseas offices under his portfolio, and therefore oper-
ationally under the remit of the International Relations department. Arguably, this
move represents a broader shift towards viewing overseas representation as part of
a more cohesive international—​or diplomatic—​strategy.
Despite Wales having its own international offices—​both co-​located with the
FCO and independent of it—​it is also clear that such representation is expected to
form a supplement to the activities of the FCO and other UK-​wide bodies, who
have a remit to promote the interests of all the UK’s constituent parts. According
to Wales’ international strategy, its Government does not aim to replicate the
‘reach and depth of UK representations abroad’, rather it works with UK bodies
to ensure Welsh interests are reflected, and UK resources are drawn upon in the
‘direct promotion’ of these interests.25
Even where such strong interests call for a direct representation from Wales, co-​
location as part of a wider UK representation clearly has its advantages. It appears
that these may—​in part—​depend upon the attitudes and legal requirements in the
receiving state. For example, the Welsh Government’s representative in the United
Arab Emirates (UAE) is part of the UK British Embassy because of the specific
international context there; a diplomatic passport is ‘necessary to live and work

21 ibid. 22  Interview with author, senior Welsh Government official, March 2013.
23 ibid. 24 ibid.
25  The Welsh Government, ‘Wales in the World: The Welsh Government’s International Agenda’
(2015). Document can be accessed here:  <http://​gov.wales/​topics/​international/​publications/​
international-​agenda/​?lang=en>.
 349

Wales’ Overseas Offices 349

there’.26 Likewise, in the EU, Wales has diplomatic members of staff on its team,
as the Welsh Government is able—​indeed required—​to act as part of UKREP.
Working relationships with the FCO are ‘generally good’, a concordat governs the
relationship and the Welsh Government will take advice if ‘something innovative
or possibly confrontational comes up. If we’re involved in a particular country and
we’re having a visit for example then we’ll take expert advice on the UK line’.27
The rationale for what the Welsh Government, as an independent entity, can
and cannot do diplomatically is always referred back to devolved competences. If
Wales is responsible for a policy area domestically, then it—​and broadly the UK
Government—​accepts that where this area has an international dimension, the
Welsh Government has a legitimate interest in it. One way of conceptualizing
this accepted diplomatic ‘space’ is to consider it a border zone, with ‘a back stop
and a front stop’.28 The backstop in this case would be issues where the Welsh
Government knows that acting or intervening would be stepping clearly into the
territory of the FCO. For example, the Welsh Government has been lobbied from
time to time on highly controversial issues—​Congolese rights under the Congo
DRC, the ‘Armenian question’ (both from groups wanting the Welsh Government
to recognize a genocide, and indeed from the Turkish Ambassador dissuading the
government from entering the debate)—​and has had to defer in these instances to
the competence of the FCO. There is the potential for Welsh Ministers to pass on
such representations informally to the FCO, but for the most part ‘there is a back-
stop, there is a line we won’t cross in terms of competence’. The risk of sending out
‘mixed messages’, in particular a message overtly contrary to that of the UK State
as a whole is taken seriously, and the duty on Welsh officials not to overstep this
mark is seen as a legitimate ‘return’ for the recognition by the UK Government
that Wales has the right to act in areas related to its own competence.29
As for a front stop, the Welsh Government would therefore ‘only interest our-
selves in the things for which we have devolved responsibility’.30 Occasionally,
however, maintaining a clear dividing line can be ‘a little bit tricky’.31 There is a
fuzzy area in the middle of such a border zone, where the Welsh Government may
act because they ‘think it’s the right thing to do’.32 The examples quoted here were
REGLEG, which aroused some suspicions in the UK Government when Wales
joined the organization in 2000, and activities around climate change.
Nevertheless, unlike the Scottish Government, whose activities we will consider
in the following section, the Welsh Government has prioritized region-​region inter-
national linkages, which are rarely subject to any significant controversy. In fact, a
senior Welsh Government official noted that, whereas the Scottish Government has
two members of staff at the UK Embassy in Beijing, the Welsh Government ‘don’t
have people in the Embassy, sitting on the side’. Instead, the Welsh Government
prioritize the development of relationships at a regional level—​for example with
the Beijing Municipal Government and the Governments of Chongqing and

26  Interview with author, Senior Welsh Government official, March 2013. 27 ibid.
28 ibid. 29 ibid. 30 ibid. 31 ibid. 32 ibid.
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350 Skirting Officialdom

Shanghai. This approach is seen to avoid some of the tensions caused by Scotland’s
approach, where it aims to deal directly with the Chinese Government.33
Dealing with foreign regional governments does not necessarily mean, however,
that the ‘diplomacy’ is always informal, or simply public diplomacy. Though the
UK’s sub-​State governments cannot sign international treaties, there is a formal
element to much of their work. Bilaterally, Memoranda of Understanding were
a frequently used modus operandi, particularly in the early years of Wales’ paradi-
plomacy. They have fallen out of favour recently, ‘we don’t now look for a piece
of paper to make a relationship work’, though they are still widely used in China,
where the MoUs are taken as a gesture of good will and a way of ‘opening up the
dialogue’.34 Ministerial visits also form a key part of Wales’ diplomatic relation-
ships. Visits from the First Minister in particular are seen as hugely important,
but all ministerial visits are viewed as a way to ‘open doors’, particularly in coun-
tries such as China where governmental structures are so significant.35 The Welsh
First Minister is a cabinet-​rank Minister in the UK Government, and thus should
benefit from the same FCO support and facilitation as other UK Government
Ministers. Whether this always bears out in practice is questionable—​problems
with fast track, for example, have been cited in interview data.
Indeed, the Chinese context offers a particularly interesting case study in the
decision-​making process around ‘opting in’ to, or indeed out of, the VCDR. The
Welsh Government has pursued a close relationship with the Chinese region of
Chongqing since 2006, when the first Memorandum of Understanding between
the two regions was signed. In September of that year, a Welsh Affairs Officer
was assigned to the British Consulate General in Chongqing, tasked with taking
forward the Wales-​Chongqing relationship, and was quickly followed by a second
post a year later. However, in January 2011 the Welsh Government opened a sep-
arate office in Chongqing, and the two posts were relocated there. The office is
located near to both the British Consulate General and the British Council, but is
not formally part of the Consulate. In the case of Chongqing, both private inter-
view data and published ministerial reports hint at the advantages perceived by the
Welsh Government in distancing themselves from the rest of the UK. In a written
statement by Hugh Lewis, a Welsh Government Minister who visited Chongqing
in 2013, he pointed to the relationship between Wales and Chongqing as the ‘most
extensive and most active between any part of the UK and China’.36 Of particular
testament to the strength of those government-​level relationships was that ‘Wales
has largely been able to avoid getting caught up in the tensions which are apparent
at national UK and China levels’.37
Operating independently at a region-​region level means that without having
the responsibility for a national foreign policy, there is an element of discretion or

33 ibid. 34 ibid. 35 ibid.

36  Welsh Government Minister Hugh Lewis, written statement to the National Assembly for Wales,
14 March 2013. The statement can be accessed here:<http://​gov.wales/​about/​cabinet/​cabinetstatements/​
previous-​administration/​2013/​chinavisit/​?lang=en>.
37 ibid.
 351

Scotland’s Overseas Offices 351

the ability to maximize the relationships for specific policy goals. Contrary to what
one might expect, therefore, it appears that in certain circumstances, not being
part of an official Embassy or Consulate may actually be beneficial to relation-
ships ‘on the ground’, particularly in countries such as China where controversial
foreign policy issues abound. Where the decision on whether or not to co-​locate
may be made on the basis of practicalities, this does not preclude the fact that this
decision has other consequences for the representation, and in some cases these
may be helpfully extricating the activities of a sub-​State government from their
State-​contemporaries. This said, however, there are also security issues which may
make co-​location impractical, and these are apparent also in the Chinese context.38
Alternately, explanations for co-​location with British Consulates may also con-
found expectations. In 2002, the Welsh Government opened its ‘flagship’ US
office in New York’s Chrysler building. However, in the face of mounting criticism
over the operating costs of overseas offices in general, and this one in particu-
lar, the office was closed down in 2011 and staff moved to the UK Consulate, a
move widely reported to be for cost-​saving reasons.39 There is a well-​established
link between paradiplomacy and the economic climate—​one borne out clearly in
Wales following the financial crisis in 2008; ‘the sub-​national diplomacy scene is
low hanging fruit when it comes to re-​ordering priorities in a time of monetary
austerity’.40 In the face of examples such as this, the decision of whether or not
to utilize the diplomatic status and resources of the UK Government through
overseas co-​location appear largely pragmatic, possibly related more to the cost of
commercial property in different locations than to the value to Wales’ diplomacy
of operating under the VCDR. Indeed, the general principle guiding the Welsh
Government’s overseas office location is that, where ‘practical and economically
viable’, co-​location is the preferred position.41

5.  Scotland’s Overseas Offices

Making a comparison between the diplomatic strategies of Wales and Scotland

is not straightforward. Firstly, the Scottish SNP Government has clear ambi-
tions for Scottish independence, ambitions at the forefront of global attention
during 2014’s referendum. Secondly, Scotland’s overseas representation is divided
between the activities of Scottish Development International (SDI) and the
Scottish Government, unlike in Wales where the Welsh Government itself is the
only outward-​facing governmental body. SDI has twenty-​nine offices in nineteen
countries, including Scotland itself, while the Scottish Government has only four
international offices in Brussels, Washington, Toronto, and Beijing. Seven of SDI’s

38  Private correspondence, Welsh Government official, July 2015.

39  ‘Wales Staff to Leave New York Chrysler Building’, BBC News (23 December 2010) <http://​
www.bbc.co.uk/​news/​uk-​wales-​12066150)>.
40  Interview with author, Senior Welsh Government advisor, March 2013.
41  Private correspondence, Welsh Government official, July 2015.
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352 Skirting Officialdom

international offices form part of official British representations. Importantly, all
four of the Scottish Government offices also form part of official UK Embassies,
Consulates, High Commissions, or UKREP.42 Where the status of the Scottish
Government’s overseas offices is perhaps simpler to assess than in Wales—​in that
they are all official diplomatic representations as they operate out of official UK
missions—​the status of SDI’s offices is less clear. The unambiguous trade and
investment focus would seem to imply that these offices were not diplomatic enti-
ties, yet their co-​location in seven instances with official UK missions suggests
otherwise. As in the case of Wales’ overseas offices, it appears that housing Scottish
representations within UK missions is often a more pragmatic choice—​both in
terms of accessing foreign policy makers and in simple economic terms—​than
‘going it alone’, but this is a choice which is dependent on the country the offices
are located within and the attitudes of the relevant receiving governments.
However, what sets the two devolved regions’ diplomacy apart most markedly is
that Scottish diplomacy is frequently directed at national governments, in contrast
to the Welsh Government’s region-​region partnership approach. For example, the
stated aim of Scotland’s North American offices is to establish ‘solid government
to government relationships at Federal and State level’.43 This has been achieved
through frequent meetings with the State Department and establishing links with
White House staff in the US, while in Canada ‘with the assistance of the High
Commission’ Scottish representatives have met with ‘key federal officials from
a number of ministries’.44 Scottish overseas offices also support links with both
the Scottish Canadian Parliamentary Association in Ottawa and the Friends of
Scotland Caucuses in the US Senate and House of Representatives. This overseas
representation in North America is the ‘Scottish government’s diplomatic mis-
sion to the region’.45 It sees itself as having a role to play ‘within the wider diplo-
matic communities’ in the region, engaging proactively with other diplomats to
‘heighten awareness of its existence and to establish connections and networks’.46
In China, the Scottish Government office in Beijing facilitates cooperation
between the Scottish Government and both the State Council in China and the
Legislative Council in HKSAR [the Hong Kong Special Administrative Region].47

42 The Scottish Government, ‘Scotland’s International Framework’ (published March 2015).

The document can be accessed here: <http://​www.gov.scot/​Publications/​2015/​03/​3466>. Further
information on the Scottish Government’s overseas representation can be found on their web pages:
<http://​www.gov.scot/​Topics/​International>.
43  Written submission from the Scottish Government on the work of its overseas offices, provided
to the Scottish Parliament’s European and External Relations committee as part of their Connecting
Scotland Enquiry. Meeting 26 March 2015, paragraph 28.
44 ibid. 45 ibid.
46  Written submission from the Scottish Government on the work of its overseas offices, provided
to the Scottish Parliament’s European and External Relations committee as part of their Connecting
Scotland Enquiry. Meeting, 26 March 2015, paragraph 28 <http://​www.parliament.scot/​S4_​
EuropeanandExternalRelationsCommittee/​Public_​papers_​26_​March_​2015.pdf>.
47  Written submission from the Scottish Government on the work of its overseas offices, provided
to the Scottish Parliament’s European and External Relations committee as part of their Connecting
Scotland Enquiry. Meeting 26 March 2015, paragraph 20.
 35

Scotland’s Overseas Offices 353

Meanwhile, Ministerial visits focus on national level politicians, apparent in both

Alex Salmond’s highly publicized visit to China in 2010 and Nicola Sturgeon’s
more recent trips to both China and Washington in 2015.48 According to Professor
Michael Keating, giving evidence to a Scottish Parliamentary enquiry in 2010,
‘nationalist Governments want to sign deals with states because that enhances their
status’.49 Yet, at the same time ‘when it comes to practical functional matters,
all Governments of whatever complexion are looking for regional level interlocu-
tors’.50 Indeed, it is not the case that the Scottish Government forgoes regional
links entirely—​they partner with ‘priority geographic areas’ in China such as
Shanghai, Tianjin, and Province of Shandong—​rather that, unlike many regional
governments operating internationally, they also aim to deal directly with foreign
national governments.
This focus on nation-​State interactions is significant when assessing the effects
that paradiplomatic activity may have on the relevance of the VCDR. Scottish
Government diplomats are party to the convention as they operate exclusively
out of official UK representations, most often dealing with official diplomatic
representations of a foreign government. The type of diplomatic activities they
engage in therefore mirror State practices very closely, yet their diplomatic status
is one loaned from the UK Government. There is an outstanding question lurking
here: where do Scottish diplomats take their political direction from: London or
Edinburgh?
Taking the international activities of the Scottish Government at face value,
one could be forgiven for assuming that it was a small state, rather than a sub-​
State authority. However, the vast majority of Scotland’s diplomatic activities take
place with the facilitation of the FCO: ministerial visits, cultural diplomacy car-
ried out through events and activities in Brussels and the Scottish government’s
other overseas offices, the overseas offices themselves, and engagement with EU
institutions. In a letter to the convenor of the Scottish Parliament’s European and
External Relations Committee, the Secretary of State for Scotland points to the
fact that, of the fifty international visits made by the Scottish Government in a
sixteenth-​month period, most of these were facilitated by the UK Government.51
The proportion of visits that the FCO is required to facilitate seems to depend

48  See ‘Alex Salmond Aims for Scots Success Made in China’, The Scotsman (5 July 2010), <http://​
www.scotsman.com/​news/​alex-​salmond-​aims-​for-​scots-​success-​made-​in-​china-​1-​816255>; ‘First Minister
Nicola Sturgeon Leads China Trade Mission’, BBC Online (25 July 2015), <http://​www.bbc.co.uk/​news/​
uk-​scotland-​scotland-​business-​33663593>.
49  Professor Michael Keating giving evidence to the Scottish Parliament’s European and External
Relations Committee on 2 November 2010, page 1718 of the official report, published by the Scottish
Parliament. The report can be accessed here: <http://​archive.scottish.parliament.uk/​s3/​committees/​
europe/​or-​10/​eu10-​0502.htm>.
50 ibid.
51 Letter to Christina McKelvie MSP, Convenor of the Scottish Parliament’s European and
External Relations Committee from the Secretary of State for Scotland the Rt Hon Alistair
Carmichael MP on 28 March 2014. The letter can be accessed here: <http://​www.parliament.scot/​
S4_​EuropeanandExternalRelationsCommittee/​Inquiries/​2014_​03_​28_​Sec_​of_​State_​to_​Convener_​
additonal_​info.pdf>.
354

354 Skirting Officialdom

on the target country in question, their openness towards sub-​State governments,
and the level that Scottish Government Ministers wish to access. Meetings with
private firms and business leaders may form a part of the Scottish Government’s
diplomatic activities that they are able to orchestrate independently, but access to
Ministers in a foreign national Government is something generally mediated by
UK authorities.52
When sub-​State governments operate solely at a region-​region level, this may be
interpreted as an area of diplomatic activity subsidiary to that taking place between
nation states and therefore one which falls outside the scope of the VCDR, and the
types of activity which it was intended to regulate. However, when one sub-​State
government enters into diplomatic relations with a foreign nation-​State govern-
ment, this strays more clearly and perhaps disruptively into a domain typically
reserved for States. These activities may be precisely the type of interactions that
fall squarely under the remit of the VCDR, yet the peculiar state-​like yet non-​
sovereign status of Scotland as a devolved region of the UK may yet exclude it as
an independent entity from the terms of the treaty. In official diplomatic activities,
Scottish diplomats would be ‘borrowing’ their status from the UK Government,
yet take their political direction from elsewhere. How this split between political
accountability and legal status or authority might manifest in the future is a key
challenge for the future robustness of the VCDR as a treaty regulating formal dip-
lomatic relations.
It is in this manifestation—​where contentious aspects of the host State or Federal
government’s foreign policy appear to have been challenged or undermined by
one of its sub-​State governments—​that the implications of paradiplomacy poten-
tially take on a geo-​political significance. In the context of Scottish diplomacy
within the UK, this situation arguably arose when a SNP delegation, including
MPs and MSPs, led by former Scottish First Minister and current SNP foreign
affairs spokesman in Westminster Alex Salmond, visited Iran during December
2016, shortly before the lifting of sanctions which followed an agreement between
the E3+3 (France, Germany, UK, China, Russia, and the USA) and Iran on a
nuclear deal. Though this agreement was reached on 14 July 2015, sanctions were
only lifted once the International Atomic Energy Agency had verified that Iran
had completed all of the necessary steps to reach ‘implementation day’, on 16
January 2016. The visit followed incremental and tentative improvements in the
UK’s relationship with Iran: a UK Embassy was reopened in Tehran in late August
2015, with Philip Hammond attending the opening ceremony, the first British
Foreign Secretary to visit the city since 2003. The SNP’s visit was arranged—​and
funded—​by the Iranian Parliament.

52  The failure of Alex Salmond to secure meetings independently with the French and Chinese
governments was the subject of a series of reports in The Daily Telegraph in 2012, based on dossi-
ers received in response to their FOI requests. The reports included an article by Simon Johnson,
Scottish Political Editor, entitled ‘Alex Salmond asked British Embassy for French PM meeting’, The
Daily Telegraph (5 July 2012) <http://​www.telegraph.co.uk/​news/​uknews/​scotland/​9377002/​Alex-​
Salmond-​asked-​British-​Embassy-​for-​French-​PM-​meeting.html>.
 35

Scotland’s Overseas Offices 355

Couched in a clear, and arguably compelling, business case for Scottish-​Iranian

trade following the lifting of sanctions, there was also a nascent foreign policy
message being conveyed by the delegation, encompassing both human rights and
nuclear disarmament. According to Alex Salmond, Iran’s rapprochement with the
West represented ‘the single most positive development in international relations
over the past year’, and positioned Scotland as being at the forefront of a glo-
bal movement to pursue new relationships with this emerging market place and
trading partner. It was, Salmond argued, ‘vital that Scotland is not left behind’,
necessitating rapid action—​that he argued elsewhere was not being taken at a UK
level—​based ‘on the sound Scottish principle of enlightened self interest’.53 The
visit to Iran entailed meetings with a high-​level roster of government ministers and
parliamentarians including Foreign Affairs Minister Dr Zarif and the speaker of
the parliament Dr Ali Larijani, and secured the agreement for an exchange of full
trade delegations in 2016.54 According to an Iranian news agency, Tasnim, Alex
Salmond further told the speaker of the Iranian Parliament that Scotland’s ‘rul-
ing party has always been against the decisions Westerners make against Iran and
believes these decisions, which have caused many problems for Iran as well as other
countries, are fundamentally wrong’.55 A report complied by the SNP delegation
following the visit was submitted to Scottish Ministers and later released under
freedom of information laws. The report argued that Iran ‘recognises Scotland as
separate to the rest of the United Kingdom’, quoting an Iranian vice-​minister as
telling Alex Salmond that ‘the door is not open to every delegation that visits Iran’,
but that the country was willing to work with Scotland.56
Putting the visit clearly in foreign policy terms, Alex Salmond told the Scottish
Herald, on his return from Iran, that the trip highlighted how Scotland ‘can use its
political profile to create foreign policy initiatives and opportunities that the UK
government would find difficulty in accessing’, and referenced the warm welcome
Scotland received, enjoying ‘much more ministerial access than the recent UK Trade
and Investment delegation to Tehran’.57 According to the former First Minister

53  Alex Salmond, cited by Michael Settle, ‘Salmond heads SNP Delegation to Iran but is Accused
of “Hollowing Out” UK Government’s Role’, The Herald Scotland (22 December 2015) <http://​www.
heraldscotland.com/​news/​14161564.Salmond_​heads_​SNP_​delegation_​to_​Iran_​but_​is_​accused_​of_​
_​quot_​hollowing_​out_​quot_​_​UK_​Government_​s_​role>.
54  Alex Salmond, cited in a news report, ‘Alex Salmond and Other SNP Politicians Hold Iran Trade Talks’
BBC Online (23 December 2015) <http://​www.bbc.co.uk/​news/​uk-​scotland-​scotland-​politics-​35168780>.
55  Tehran-​based news agency ‘Tasnim’, cited by Michael Settle, ‘Salmond Accused of Grandstanding
Following Trip to Tehran’, The Herald (23 December 2015) <http://​www.heraldscotland.com/​news/​
14162324.Salmond_​accused_​of_​grandstanding_​following_​his_​trip_​to_​Tehran>.
56  Report compiled by the SNP’s delegation to Iran, submitted to Scottish Ministers and released
under the Freedom of Information Act, cited by Daniel Sanderson ‘John Swinney turns down
approach by Alex Salmond to discuss Iran trip’, The Herald (7 March 2016) <http://​www.herald-
scotland.com/​politics/​14325143.John_​Swinney_​turns_​down_​approach_​from_​Alex_​Salmond_​to_​
discuss_​Iran_​trip>.
57  Jamie Brotherston, ‘SNP Delegation to Iran Highlights Scotland’s Potential to Create Foreign
Policy Initiatives’, The Herald (27 December 2015) <http://​www.heraldscotland.com/​news/​14168707.
SNP_​delegation_​to_​Iran_​highlights_​Scotland_​s_​potential_​to_​create_​foreign_​policy_​initiatives/​>.
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356 Skirting Officialdom

‘opposition to Western adventurism in the Middle East, a bilateral stance in trade
talks and the intent to hold open discussions without lecturing and heckling’ are all
areas where Scotland can ‘outplay’ Westminster when it comes to foreign policy.58
At one level of analysis, the SNP delegation to Iran and the political rhetoric sur-
rounding it represents the proverbial storm in a teacup; Alex Salmond—​known
for being a provocative and outspoken advocate of Scotland’s independent inter-
national standing—​noisily marking out the territory of his new role as the SNP’s
foreign policy spokesman. It was, after all, not a Scottish Government delegation,
and thus the talks held were by their nature exploratory—​no member of the dele-
gation was authorized to commit the Scottish Government to specific policy. The
fact that the Scottish Government itself has appeared reticent to comment on the
trip or publicly discuss the content of talks would indicate that they perhaps are
taking a more cautious approach to the relationship. However, at a geopolitical
level, the fact that it was not the Scottish Government, but rather a delegation of
SNP politicians from both Westminster and Holyrood that were taking a forth-
right view on the future relationship between Scotland and Iran, on major areas
of foreign policy such as nuclear proliferation and human rights, and on the per-
ceived failings of the UK, and ‘the west’ more generally, may bear little relation on
the lasting perception.
Another particularly ‘thorny’ issue in this area is recognition. In their analysis
of the EU’s diplomatic identity, Wouters and Duquet point to the possibility of a
situation whereby ‘the EU intends to accredit a diplomatic representative to a third
country that is not recognized by all 27 Member States’.59 This could happen, the
authors argue, despite the fact that EU Member States retain the exclusive compe-
tence to recognize other States and/​or governments, which is a preliminary condi-
tion to enter into diplomatic relations: ‘States are the only actors in international
law that are able to recognize other States –​be it de jure or de facto’.60 In the case
of sub-​State governments, similar scenarios have arguably emerged already. The
Scottish Government, for example, has unequivocally called for the recognition
of an independent Palestinian State. In a letter to the UK Foreign Secretary Philip
Hammond in October 2014, Scottish External Affairs Minister Humza Yousaf
called on the UK Government ‘to take action and formally recognise the State of
Palestine’, and also outlined ‘the Scottish Government’s support for the opening
of a Palestinian consulate in Scotland and highlighted the need for a Palestinian
embassy in the UK’.61 Though Scotland itself cannot formally recognize Palestine,
the issuing of such unequivocal views on its status inevitably complicates percep-
tions of the UK’s position. Similar instances have occurred in Wales, where—​in

58 ibid.
59  Jan Wouters and Sanderijn Duquet, ‘The EU and International Diplomatic Law: New Horizons?’
(2012) 7 (1–​2) The Hague Journal of Diplomacy 31–​49, at 33.
60 ibid.
61 Scottish Government, Press Release ‘Calls to Recognise Palestine:  UK Government Urged
to Open Palestinian Embassy’ 12 October 2014 <https://​news.gov.scot/​news/​calls-​to-​recognise-​
palestine> accessed 5 April 2017.
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Scotland’s Overseas Offices 357

large part due to the size of the Somali Diaspora within Wales—​the National
Assembly and the Welsh Government have been key targets for activities designed
to secure international recognition for Somaliland. In perhaps the most conten-
tious ‘diplomatic’ move, the National Assembly for Wales extended an invitation
to the Somaliland government to attend the Royal opening of the Senedd in 2006,
an initiative interpreted by the Somaliland—​and Welsh—​presses as official recog-
nition of the break-​away government’s legitimacy.62
The difference between the activities of sub-​State governments, on the one hand,
and small State governments on the other, may be one that is increasingly difficult
to discern on a day-​to-​day level. However, under international law, this distinction
remains a pertinent one. The difference also has some relevance in a more pragmatic
sense:  the Welsh Assembly’s reported ‘recognition’ of Somaliland or the Scottish
Government’s support for a separate Palestinian State does not carry the same diplo-
matic or legal force as similar actions by a sovereign State. However, at a political level,
this ‘unofficial’ recognition may indeed have an effect, albeit a lesser one. The ambi-
guity surrounding the status of sub-​State governments is compounded by widespread
confusion regarding the architecture of devolved or regional government (such as
between the National Assembly for Wales as a legislature, and the Welsh Government
as an executive) and the lack of a designated ‘foreign office’ from which diplomatic
messages are directed.
Turning to Scotland’s approach to international affairs more generally, the Scottish
Government’s latest international strategy, published in 2015, calls for an ‘embed-
ding’ of internationalization across its areas of competence. It also points to the
fact that internationalization has been identified as an integral strand in Scotland’s
Economic Strategy, and therefore, as with most sub-​State governments participating
at an international level, boosting trade and investment is a key priority taken forward
to international representations. However, the strategy also identifies the importance
of Scotland’s role as a ‘good global citizen’, meaning that it will contribute to the pro-
motion of international stability and equality worldwide, continuing its advocacy of
human rights and pursuing its ‘distinctive’ international development programme.63
It is not common for sub-​State governments to have such a pronounced nor-
mative dimension to their paradiplomatic activities, though both Flanders and
two Spanish regions do have close development links with parts of South Africa
and Latin America respectively.64 Similarly, the Finnish region of Åaland has
built a reputation around promoting its distinct model of conflict resolution and

62  Martin Shipton, ‘Wales Strikes Out on its Own in Recognition of Somaliland’ Western Mail
(original report 3 March 2006, re-​reported in the Somaliland Times) <http://​www.walesonline.co.uk/​
news/​wales-​news/​wales-​strikes-​out-​recognition-​somaliland-​2346712> accessed 5 April 2017.
63  The Scottish Government, ‘Scotland’s International Policy Statement’ (2015) <http://​www.gov.
scot/​Publications/​2015/​03/​7071>.
64  Professor Michael Keating, giving evidence to the Scottish Parliament’s European and External
Relations Committee 2 November 2010, 1720–​21 of the official report <http://​archive.scottish.
parliament.uk/​s3/​committees/​europe/​or-​10/​eu10-​0502.htm>.
358

358 Skirting Officialdom

normative diplomacy around this area more generally.65 Wales shares some simi-
lar ambitions, notably in its Wales for Africa programme and activities around a
Fair Trade Wales, but is not as cavalier in terms of ambitions around promoting
human rights norms, international stability, and managing international crises.
The stated ambition to be a ‘good global citizen’ is distinctive about Scotland’s
international strategy and—​surprisingly given its very limited formal competence
in this area—​Scotland has achieved significant recognition in this area as part of
its ‘nation branding’ efforts.66 Whether it is a speech about gender equality to
the Chinese Friendship Association, declarations on UK Government defence and
international development policy, or the appropriation of Chinese ‘panda diplo-
macy’, Scottish diplomacy aims to influence national-​level politicians, offer its own
‘line’ on foreign policy, and generally take its brand of good global citizenry to the
world stage.67
Alongside its international offices and those of SDI, the Scottish Government
engages on specific policy issues identified in separate policy documents, as well as
its One Scotland Partnership Country Plans with China, India, Pakistan, Canada,
and the USA. As part of the SNP’s programme for Government 2014–​2015 a ser-
ies of Investment Hubs in ‘key overseas locations’ will be piloted, bringing together
‘resources and partners in particular location and co-​ordinate and deliver activity on
the ground’.68 Within the Scottish Government itself, under First Minister Nicola
Sturgeon there is a Cabinet Secretary for Culture, Europe, and External Affairs as
well as a Minister for Europe and International Development. These titles reflect a
subtle shift in the Scottish Government’s international priorities post-​referendum
that foregrounds the European context ever more strongly: the Cabinet Secretary’s
previous title was Culture and External Affairs and the Ministerial portfolio was for
External Affairs and International Development.
For sub-​State governments, acting within the European context is seen as a more
legitimate extension of their domestic competences than forays into the broader
international environment. There is a general acknowledgement of Scotland’s legit-
imate interest in decision-​making at a European level as it impacts directly on
Scotland itself in numerous policy areas. In the wake of 2014’s referendum on
Scottish independence, and in the shadow of a second UK-​wide referendum on EU
membership, this context now offers Scotland a space to conduct paradiplomacy

65 Michael Wigell ‘The Aland Example as Norm Entrepreneurship’ 2013 (20) International
Journal on Minority and Group Rights 67, 84.
66  Scottish Government Strategic Research ‘The Anholt-​GFK Roper Nation Brands Index: 2012
Report for Scotland’ (2012) <http://​www.gov.scot/​Publications/​2012/​12/​4188>.
67  Speech by First Minister Nicola Sturgeon to the Chinese Friendship Association in Beijing,
27 July 2015  <https://​news.gov.scot/​speeches-​and-​briefings/​first-​minister-​at-​the-​chinese-​friendship-​
association> accessed 5 April 2017; Scottish Government press release ‘No Aid Money on Military
Interventions’ (21 February 2013) <http://​www.gov.scot/​News/​Releases/​2013/​02/​international-​
aid21022013>; Martin Hickman ‘Alex Salmond Bamboozled the Public with Panda Advert’ The
Independent (11 April 2012) <http://​www.independent.co.uk/​news/​media/​advertising/​alex-​salmond-​
bamboozled-​the-​public-​with-​panda-​advert-​7631368.html>.
68  The Scottish Government ‘Scotland’s International Policy Statement’ (2015) 6 <http://​www.
gov.scot/​Publications/​2015/​03/​7071>.
 359

Scotland’s Overseas Offices 359

that both engages directly with policy making through its representation under the
banner of UKREP and allows it to foreground its ‘pro-​European credentials’ to
both domestic and European audiences.
Undoubtedly, Scotland’s international presence has been marked strongly in
recent years by the independence referendum. This applies to the activities the
Scottish Government wishes to engage in, positioning itself as a pro-​European
small country, natural kin to its neighbours in the ‘Nordic arc of prosperity’.69 It
is also represented in the relationship between the Scottish and UK Governments,
who have been on opposing sides of a highly controversial campaign, and—​
naturally—​whose working relationship has been duly challenged. It also means
there has been a wealth of speculation, in policy documents or position papers and
from parliamentary inquiries, shedding light on the ways in which the diplomacy
of Scotland as a sub-​State government is seen to be constrained (or otherwise) on
account of this status, how it would differ as an independent state, and thus on the
currency of official diplomatic status more generally.
The view of the SNP, immediately prior to the referendum on Scottish inde-
pendence, was that Scotland would be better served by having ‘diplomats dir-
ectly serving its interests in key countries’, not just in Brussels, Washington, and
Beijing.70 The same position paper argued that a ‘Devo Max’ model of devolution
there could be ‘Scottish interest sections’ in British Embassies in major European
countries, alongside the Scottish Government’s existing overseas representation.71
This position would seem to suggest that there is no major dissatisfaction with the
role that Scottish Government officials are able to play when they act as diplomats
as part of UK overseas representations. Indeed, the position paper fails to cite any
real benefits that a wholly separate representation from an independent Scotland
would realize.
From the UK Government’s perspective, nothing was guaranteed in terms of
any independent Scotland’s ability to utilize existing UK diplomatic, security, and
intelligence resources. There might be overlapping interests between the rest of the
UK and an independent Scotland, but the UK would only cooperate to the extent
that it was in its own interest, according to the UK Secretary of State for Foreign
and Commonwealth Affairs.72 The Secretary of State summed up the existing rela-
tionship as being about the successful promotion of Scottish businesses, arguing
that it was for this reason that many of the Scottish Government’s overseas offices

69  Andrew Boyle, ‘Scotland and Norway, a Special Relationship?’ The Guardian (4 October 2011)
<http://​www.theguardian.com/​commentisfree/​2011/​oct/​04/​scotland-​norway-​special-​relationship>.
70 The Scottish Government, ‘Europe and Foreign Affairs:  Taking Forward our National
Conversation’ (Edinburgh, September 2009) para 4.5 <http://​www.gov.scot/​Resource/​Doc/​283886/​
0086022.pdf>.
71 ibid.
72  Response from the UK Secretary of State for Foreign and Commonwealth Affairs to the sixth
report from the Foreign Affairs Committee session of 2012–​2013, ‘Foreign Policy Considerations for
the UK and Scotland in the Event of Scotland Becoming an Independent Country’ July 2013, para
17  <https://​www.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​210012/​30944_​
Cm_​8644_​Web_​Accessible.pdf>.
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360 Skirting Officialdom

were currently located within the UK’s Embassies and High Commissions.73
Certainly there is an argument that the ability of Scotland, and the UK’s other
devolved regions, to utilize a ‘two-​track’ diplomatic strategy—​drawing on UK
structures and resources as well as initiate independent activities—​may magnify
their international influence, and effectiveness, in relation to similar sized small-​
states. For example, it has been argued that Scotland’s influence in the European
Union may actually be weakened should it gain membership as a small member
State, rather than a region of a much larger state.74 Importantly, however, this
added value is only realized where the sub-​State and nation-​State governments
have overlapping interests.

6. Conclusion

In trying to typify the diplomatic representations of sub-​State governments—​

Scotland and Wales in this instance—​we are perhaps best led to Berridge’s classifi-
cation of ‘unconventional’ bilateral diplomacy.75 Though this typology is intended
to describe the activities of States, when resident embassies of the ‘conventional
kind’ cannot be maintained for one reason or another functionally—​and indeed in
some terminology—​these unconventional activities describe fairly accurately the
diplomacy of many sub-​State governments. For example, the Welsh Government’s
overseas offices that operate outside of official UK missions bear many of the same
characteristics of what Berridge terms ‘representative offices’: ‘a mission that looks
and operates much like an Embassy, the only difference being its informality’.76
Additionally, a key structure of unconventional diplomacy as exposed by Berridge,
interest sections, is precisely what the Scottish Government have called for under
any possible ‘Devo Max’ model of devolution, allowing them to have a more clearly
distinguished representation inside British embassies abroad.77
There is, therefore, a precedent and a series of structures relating to sub-​State
diplomatic representations abroad—​both when they operate as part of, and inde-
pendent from, their host State’s mission. However, the proliferation of paradip-
lomatic activities still presents as-​yet-​unanswered questions. Which government
are ‘para-​diplomats’ ultimately accountable to? If co-​location were in operation,
then one would assume this was the foreign office of the host-​State, in our case

73  This number includes SDI offices.

74  Response from the UK Secretary of State for Foreign and Commonwealth Affairs to the sixth
report from the Foreign Affairs Committee of session 2012–​13: ‘Foreign Policy Considerations for
the UK and Scotland in the Event of Scotland Becoming an Independent Country’ July 2013, para
105 <https://​www.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​316157/​MoU_​
between_​the_​UK_​and_​the_​Devolved_​Administrations.pdf>. This argument is strongly refuted by
the Scottish Government.
75 Geoff Berridge, Diplomacy: Theory and Practice (3rd edn, Palgrave Macmillan, Basingstoke
2005) 137–​43.
76  ibid 145, emphasis in original.
77 The Scottish Government, ‘Europe and Foreign Affairs:  Taking Forward Our National
Conversation’ (n 70) para 4.5.
 361

Conclusion 361

the FCO.78 However, where this might at times be a murky area—​at other times
it is abundantly clear that political direction is taken from the devolved, not the
national government. In Scotland’s case, for example, the Scottish Government
representation in Brussels is clear that they take their political direction from
‘Edinburgh, not London’.79 Another key outstanding issue is the practice of rec-
ognition. As discussed earlier in the chapter, sub-​State governments are not able
to officially recognize breakaway governments or independent States, yet they do
have a—​often public—​view on such matters. Though their informal support or
recognition may not carry any weight in international law, it is not at all difficult to
imagine a scenario where their positions were used to influence other members of
the international community, and, certainly, may confuse and even hamper their
host-​State’s policy in this area.
The title of this chapter uses the phrase ‘skirting officialdom’. It is worth returning
to this central theme in concluding our discussions. Wales and Scotland both carry
out official and unofficial diplomatic activities. In Wales’ case, the Government
has overseas representations that form part of official UK diplomatic missions and
representative offices that are independent of the UK’s diplomatic structures, and
thus by definition are ‘informal’ diplomatic entities. As the preceding sections dis-
cussed, the decision of whether or not to co-​locate with the UK Government, and
give Welsh representations diplomatic status—​‘opting in’ to the VCDR—​is made,
perhaps surprisingly, on a fairly pragmatic basis. The Welsh Government does not
seem to experience any major problems in carrying out their ‘brand’ of diplo-
macy outside of UK missions, and indeed—​as referenced in the discussion of the
Chongqing representation—​acting outside of an official representation may even
have its advantages. In the case of Wales, its emphasis on region-​region linkages
means that ‘informal’ diplomacy is, in most instances, perfectly adequate for its
needs. Diplomacy between regional governments of this kind may look and sound
much like ‘official’ or ‘formal’ diplomacy, it certainly has the pomp and ceremony
to fit, yet it remains outside of the scope of the VCDR, subsidiary to interactions
at a nation State level.
For Scotland, however, the decision to host its governmental representations
exclusively within UK diplomatic missions tells us something different. In this case,
the Scottish Government’s desire to interact with State-​level representations—​in
China, in the USA, in Japan, and in Canada—​means that it requires the formality
and diplomatic status that co-​location with the UK brings. The Scottish experi-
ence thus perhaps demonstrates the continued importance of ‘official’ diplomatic
representations, a message often subsumed by discussions of the broadening of
diplomatic practices, the proliferation of diplomatic actors, and the weakening of

78 Indeed this is what the Memorandum of Understanding between the UK and Devolved
Governments states in no uncertain terms (2013), B4.27, D4.23 <https://​www.gov.uk/​government/​
uploads/​ s ystem/​ u ploads/ ​ a ttachment_ ​ d ata/ ​ f ile/ ​ 3 16157/​ MoU_​ b etween_​ t he_​ U K_​ a nd_​ t he_​
Devolved_​Administrations.pdf>.
79 The Scottish Government ‘Europe and Foreign Affairs:  Taking Forward Our National
Conversation’ (n 70) para 2.6.
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362 Skirting Officialdom

the traditional diplomatic system. To secure high-​level access, to engage with the
‘wider diplomatic community’ and to be accorded the status of a diplomat—​for
all sorts of practical reasons—​the Scottish Government has determined that acting
under the umbrella of the UK State, and thus under the terms of the VCDR, is a
necessary feature of its overseas representation.80 Somewhat ironically, the bitter-
ness of the pill in this case—​given the Scottish Government’s desire for independ-
ence, and generally fraught inter-​governmental relations—​is perhaps testament to
the enduring relevance of a more traditional style of diplomacy.

80  ‘Wider diplomatic community’ reference: written submission from the Scottish Government on
the work of its overseas offices, provided to the Scottish Parliament’s European and External Relations
Committee as part of their Connecting Scotland Enquiry, Meeting 26 March 2015, para 28 <http://​
www.parliament.scot/​S4_​EuropeanandExternalRelationsCommittee/​Public_​papers_​26_​March_​
2015.pdf> and <http://​archive.scottish.parliament.uk/​s3/​committees/​europe/​inquiries/​euDirectives/​
documents/​ScottishGovernmentsubmission.pdf>.
 36

Part VII
Concluding Thoughts
364
 365

20
Diplomatic Law Today
Has the Vienna Convention Met Its Expectations?

Paul Behrens

1.  From Vienna to Vienna: An Unmitigated Success?

At the time of writing, fifty-​five years have passed since the signing of the Vienna
Convention on Diplomatic Relations. The intervening period has seen considerable
changes in international relations: some actors have strengthened their position,
and new faces have appeared in the diplomatic world. ‘Traditional’ diplomats—​
those sent by States to States—​are joined by colleagues assigned to international
organizations, by diplomats from the European External Action Service—​even by
representatives of entities that are not recognized as States. The preceding chapters
have reflected on the changing face of diplomatic relations in that regard.
In light of this, one may wonder whether the strong position which legal observ-
ers and practitioners customarily assign to the regime of the VCDR has come
under attack. There are, after all, rivals in the field. The competition started even
in the early days of the Convention: shortly after the conclusion of the VCDR,
the Vienna Convention on Consular Relations was signed; and not long after-
wards the Convention on Special Missions. Today, a fair number of treaties in the
field are asserting their existence and vying for the attention of States and their
representatives.
And yet, in many regards, the VCDR appears to merit the high regard in which
it is held. In its own field, it is tempting to consider it a uniquely successful conclu-
sion to a process which, where international codification is concerned, had begun
more than two hundred years earlier—​when representatives of States for the first
time agreed at Vienna to the conclusion of an instrument that regulated aspects of
diplomatic law for a multitude of States.1 And the remit of the Vienna Regulations
of 1815, along with that of a second instrument, concluded three years later,2

1  Congress of Vienna, Règlement sur le rang entre les agents diplomatiques (19 March 1815) Annex
XVII of the Acts of the Congress 2 (1814–​1815) British and Foreign State Papers 179.
2  Protocole de la Conférence, tenue à Aix-​la-​Chapelle (21 November 1818) 5 (1817–​1818) British
and Foreign State Papers 1090.

Diplomatic Law Today: Has the Vienna Convention Met Its Expectations? Paul Behrens. © Paul Behrens,
2017. Published 2017 by Oxford University Press.
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366 Diplomatic Law Today

remained narrow: codification, back then, was limited to questions of rank and
precedence among diplomatic representatives. The reach of the VCDR on the
other hand extends to areas as diverse as the immunity of diplomats, administra-
tive and technical staff and service staff, functions and duties of the mission, the
diplomatic bag, diplomatic correspondence and archives, taxation and duties of
third States with regard to diplomats passing through their territory.
What is more: consensus on these rules came speedily, and it was to embrace
a large number of members of the international community. It is a development
which was foreshadowed at the drafting stage: it took the ILC only two years to
produce a final set of draft articles after debates on the topic had started. (The
law of treaties, by comparison, was considered at six sessions, and the ILC went
through four successive Special Rapporteurs to accomplish its work on the sub-
ject.3 ) The conference of States, which agreed on the final text of the VCDR,
took forty-​four days to deliberate the topic,4 and the treaty needed a mere three
years to enter into force. The ‘Vienna consensus’ today spans political and cultural
divides: it counts no less than 190 parties,5 making it one of those rare treaties
which have deserved the name of a quasi-​universal instrument.
The significance of that achievement gains further clarity if the reach of the
VCDR is compared to that of other instruments in the field of diplomatic and
consular relations. The VCCR was concluded only two years after the VCDR; it
took four years to enter into force and has, today, 179 parties.6 The CSM, con-
cluded 1969, needed more than fifteen years to enter into force and has only thirty-​
eight parties.7 The CRSIO, concluded in 1975, has still not entered into force (it
has no more than thirty-​four State parties).8 And the ILC Draft Articles on the
Diplomatic Courier and the Diplomatic Bag, whose final version was agreed in
1989,9 never even saw their transformation into a treaty text.
But the success of the VCDR is also reflected in the fact that many of its rules
were taken aboard in later instruments in the field—​often verbatim. Examples

3  See, for a helpful summary, ILC, Summaries of the Work of the International Law Commission,
Law of Treaties (22 July 2015) <http://​legal.un.org/​ilc/​summaries/​1_​1.shtml>.
4  See United Nations Conference on Diplomatic Intercourse and Immunities, Vienna 2 March–​
14 April 1961, Official Records, Vol I:  Summary Records of Plenary Meetings and of Meetings of the
Committee of the Whole UN Doc A/​CONF 20/​14 (hereinafter ‘Vienna Conference Records Vol 1’).
5  United Nations Treaty Collection, Vienna Convention on Diplomatic Relations, Vienna, 18 April
1961 (30 November 2016) <https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​
no=III-​3&chapter=3&clang=_​en>.
6  United Nations Treaty Collection, Vienna Convention on Consular Relations, Vienna, 24 April
1963 (30 November 2016) <https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​
no=III-​6&chapter=3&clang=_​en>.
7  United Nations Treaty Collection, Convention on Special Missions, New  York, 8 December
1969 (30 November 2016) <https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​
no=III-​9&chapter=3&clang=_​en>.
8  United Nations Treaty Collection, Vienna Convention on the Representation of States in their
Relations with International Organizations of a Universal Character, Vienna, 14 March 1975 (30
November 2016) <https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=III-​11&
chapter=3&clang=_​en>.
9  ILC Yearbook 1989 vol II Pt 2, 75.
 367

From Vienna to Vienna: An Unmitigated Success? 367

include the inviolability of diplomatic premises,10 freedom of movement,11 free-

dom of communication,12 and the personal obligations of diplomatic agents.13
Not every treaty in this field can claim to have exerted such influence: the drafters
of the later instruments could, for instance, in some respects have chosen to take as
their blueprint the 1946 UN Convention on the Privileges and Immunities of the
United Nations.14 That they referred back to the VCDR instead is a testament to
the drafting work of the ILC in 1957 and its Special Rapporteur.
What Jean-​Jacques Dordain observed about the nature of achievements, holds true
in this regard as well: ‘the biggest problem of success is that it looks easy’.15 The danger
certainly exists that the speedy acceptance of the VCDR leads its observers to forget
the hard work of the drafters and the challenges they had to overcome. In the same
vein, it can be too easy to overlook the fact that diplomatic law had been subject of
passionate academic debate for centuries and that its path to clarity was, on the basis
of State practice alone, not always determined in the international community. The
long-​standing controversies on the rights of the diplomatic ‘suite’ and on the need of
sending States to accept a declaration persona non grata are witnesses to that.
But there is another danger that attaches to the impression of success: it thrives
on the suspension of critical faculties. The fact that a treaty has gained an extremely
wide degree of acceptance leads all too easily to the conclusion that it must have
fulfilled the purpose which the international community associated with it, and
that it has served to settle the controversies which informed the need for its adop-
tion. In the case of the VCDR, that may not be an unreasonable expectation.
When Yugoslavia in 1952 suggested to the General Assembly that codification of
diplomatic law be undertaken as a matter of priority,16 it was clear that she put
great hopes into the clarity a written text would provide:  the current situation,
according to her representative, made it ‘imperative’ to lay down the relevant rules,
‘and thus to confirm definite and precise rules of international law’.17
In that regard, however, a critical review of the current state of diplomatic law
raises uncomfortable questions. The years since the entry into force of the VCDR
have certainly seen their share of situations to which the conventional system has
failed to provide satisfactory answers.

10  VCDR art 22 VCDR. See, albeit with varying limitations, VCCR art 31; CSM art 25; CRSIO
art 23.
11  VCDR art 26. See VCCR art 34; CSM art 27; CRSIO arts 26 and 56.
12  VCDR art 27(1). See VCCR art 35; CSM art 28(1); CRSIO arts 27 and 57.
13  VCDR art 41(1). See VCCR art 55; CSM art 47; CRSIO art 77.
14  Convention on the Privileges and Immunities of the United Nations (opened for signature 13
February 1946, entered into force 14 December 1946) 1 UNTS 15.
15  Dordain, Director-​General of the European Space Agency, made these remarks on the occa-
sion of the successful landing of the probe Philae on the Rosetta comet in 2014. John Berman
et  al, ‘European Probe Lands on Comet; European Space Agency Director:  “Big Step for Human
Civilization” ’ CNN (12 November 2014).
16  ILC Yearbook 1956 vol II, 131. 17 ibid.
368

368 Diplomatic Law Today

The case of Julian Assange, the activist who was granted asylum in the
embassy of Ecuador in London in 2012,18 constitutes one example in the field.
The incident gave rise to considerable controversy between sending and receiv-
ing State,19 but observers of the case who sought legal advice from the text
of the VCDR were engaging in a futile exercise: the treaty does not mention
diplomatic asylum. Almost thirty years before the Assange case, London bore
witness to another incident that raised questions of diplomatic law: the killing
in 1984 of a young policewoman through shots emanating from the Libyan
mission.20 Those who referred to the VCDR in this context to ascertain the
options for lawful reactions by the receiving State could almost be said to have
knocked at the doors of absurdity: the Convention enshrines personal diplo-
matic inviolability as an absolute right, permitting of no exceptions, and allows
entry of mission premises only with the consent of the head of the mission.21
More recently, ‘cablegate’—​an incident beginning in November 2010, when
the activist website WikiLeaks made more than 250,000 cables, created by US
diplomatic missions, available to selected media in Germany, Spain, France,
and the United States,22 raised the question whether the law of the 1961
Convention is still able to guarantee the inviolability of diplomatic correspond-
ence and diplomatic archives.
These incidents are symptomatic for three distinct groups of challenges which
the system of diplomatic law faces today and to which a literal reading of the
VCDR, for different reasons, provides no conclusive answer. But an investigation
of their character has to be undertaken if the effectiveness of the VCDR in the
twenty-​first century is to receive an appropriate evaluation, and it also has to be
performed before an attempt can be made to formulate approaches which could
provide the necessary solutions under existing and future law. This is the remit of
the following sections: section 2 examines the way that led to the emergence of
principal challenges in the field; section 3 explores options to address the problems
which diplomatic law faces today. The final section (4) returns to the fundamen-
tal question which stood at the beginning of this study, and seeks to evaluate the
Convention in light of the hopes which its drafters attached to it, more than half
a century ago.

18  Sylvia Hui and Gonzalo Solano, ‘Ecuador Says WikiLeaks Founder Seeking Asylum’ Associated
Press (19 June 2012).
19  See on this Paul Behrens, ‘The Law of Diplomatic Asylum –​A Contextual Approach’ 35 (2014)
Michigan Journal of International Law 319, 320.
20  See ‘1984: Libyan Embassy Shots Kill Policewoman’ BBC Online <http://​news.bbc.co.uk/​onthis-
day/​hi/​dates/​stories/​april/​17/​newsid_​2488000/​2488369.stm> and see also Chapters 3, 6, and 11.
21  VCDR arts 29 and 22.
22  ‘Background: WikiLeaks Documents in Public Interest’ Deutsche Presse-​Agentur (28 November
2010). See also text to nn 92–​101.
 369

Boundaries of Success: Challenges to Diplomatic Law 369

2.  The Boundaries of Success: Challenges to Diplomatic Law

and their Reasons

By considering the above named difficulties in their respective contexts, it is pos-

sible to distinguish three challenges which arise to diplomatic law today: challenges
which find their basis in the language of the convention itself; difficulties which
derive from the meeting of rules of the VCDR with other norms of international
law; and, finally, problems which arise from developments, mainly of a techno-
logical nature, which manifested themselves after the VCDR had entered into force.
That is not to say that there are no overlaps between the three groups. But a dis-
tinction along these lines is helpful in an effort to understand the reasons behind
the emergence of these difficulties, and it is a necessary exercise for any attempt to
formulate solutions.

2.1 Skirting the issue: the blind spots of the Convention

It may be tempting to consider the language of the VCDR one of its strongest
points. On the whole, the treaty is clear, accessible, and—​at least by comparison to
some later instruments of international law—​concise.23
That is, in large part, an achievement of the ILC, whose two sets of draft articles
(in 1957 and in 1958)  had already employed a remarkably clear structure, had
avoided the overloading of articles, and used language that was easy to follow. Even
today, the handwriting of the ILC is, to a considerable degree, visible in the text
of the VCDR.
And yet, it is interesting to note that the adoption of a binding treaty had not
been a foregone conclusion and that the language of the draft articles had been one
of the very reasons for reluctance in that regard. The United States, as late as 1958,
was opposed to the submission of the ILC draft articles to the General Assembly
‘in the form of a convention’, and it noted by way of explanation that some of the
articles were evidence for an effort to reach compromise among differing views by
governments on particular issues. The result was ‘too frequently a vague or ambigu-
ous statement, obscure in meaning and susceptible of different interpretations’.24
That may, at first sight, seem an uncharitable observation. And yet, a closer
look at issues which continued to cause problems after the entry into force of the
VCDR suggests that the United States had touched upon an issue that was based
on facts, and that it is this particular circumstance which is at the root of several
difficulties relating to legal assessment which haunt diplomatic law even today. The

23  A comparison with more recent treaties may well lead to the impression that their drafters did
not subject themselves to quite the same discipline as the ILC members in the case of the VCDR. See,
for an example, Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into
force 1 July 2002) 2187 UNTS, art 8 (hereinafter ‘ICCSt’).
24  ILC Yearbook 1958 vol II, 133 (Note Verbale by the United States of America of 24 February
1958). See also Chapter 5 above.
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370 Diplomatic Law Today

available evidence suggests that the drafters, on more than one occasion, ensured
the eventual success of the instrument by charting a course around some of the
trickier questions which had been foreseeable even at the time of codification.25
The concept of the ‘family’ of the diplomatic agent offers an example in the
field. That immunity under diplomatic law must extend beyond its principal
beneficiaries—​diplomats themselves—​had been clear even under customary inter-
national law. At the same time, extending immunity to the family of a diplomatic
agent considerably expands the circle of persons who can move within the receiv-
ing State without fear of prosecution even for serious crimes; and it means that
the cover of immunity is extended to persons who cannot be presumed to have
received training on the nature and the limits of the diplomatic office.
The proper determination of the group of persons that can be deemed to belong
to the ‘family’ of the diplomatic agent is thus of considerable significance—​and
had been so even in pre-​conventional days. The way, however, in which the VCDR
addresses this difficulty is by merely stating that the ‘members of the family of
a diplomatic agent forming part of his household’ shall enjoy his privileges and
immunities, as long as they are not nationals of the receiving State.26
Yet a universal concept of ‘family’ did not exist even when the ILC began its
deliberations on the draft, and national laws differed widely where the treatment
of family members of diplomatic agents was concerned. The question of immuni-
ties which, for instance, were to be given to parents or to spouses in polygamous
marriages did not easily lend itself to an answer which would have found general
consensus within the international community. When contemporary diplomatic
law therefore has to find an answer to claims for immunity for same-​sex spouses
of members of the diplomatic mission—​a point that was raised eg in relations
between India and the Canadian High Commission in that country in 200727—​it
deals in fact with variations on a theme that had been heard even in the early stages
of the codification history.
And it is clear that the significance of the matter, and the variety of responses
under domestic law, had been clear to members of the ILC.28 In spite of this, the
Commission decided to adopt a general formula (‘members of their families form-
ing part of their respective households’)29 instead of engaging in the difficult busi-
ness of drafting a ‘minimum list’ of such members that could have hoped to meet
with a consensus position during the negotiations.
At the Conference itself, several States tried to do exactly that and sought to
reach a more precise definition of the members of the diplomatic family.30 In the

25  See also text to nn 45–​46 below. 26  VCDR art 37.

27 Charu Sudan Kasturi, ‘Delhi in Same-​ Sex Diplomat Dilemma’ The Telegraph (India, 7
May 2007).
28 See on this ILC Yearbook 1957 vol I, 15–​17 and 134–​37, and in particular 134, para 4
(Chairman).
29  ILC Yearbook 1958 vol II, 101, art 36(1).
30 See United States of America, United Nations Conference on Diplomatic Intercourse and
Immunities, Vienna 2 March–​14 April 1961, Official Records, Vol II: Annexes, Final Act, Vienna
Convention on Diplomatic Relations, Optional Protocols, Resolutions UN Doc A/​CONF 20/​14/​Add.1
(hereinafter ‘Vienna Conference Records Vol 2’) 9, UN Doc A/​CONF 20/​C 1/​L 17; Ceylon, ibid 16,
 371

Boundaries of Success: Challenges to Diplomatic Law 371

end, however, the conference too decided to take the simpler course and opted for
the above-​mentioned wording.31
The proper interpretation of this provision in cases of differing understandings
adopted by sending and receiving State is therefore still a matter fraught with
difficulty. In principle, customary international law must be held to fill the gaps
which the Convention leaves,32 but the problem here derives from the very fact
that ‘consistency’ of State practice and opinio iuris, as an element of this source of
international law, cannot in every case be established.
The determination of members of the family thus must often be left to the
affected States themselves (and that typically means it is subject to the extent to
which the receiving State is prepared to accept certain persons as members of the
family).33 It is not the only instance in which bilateral agreements have to take the
place of international regulations.
Another difficulty which has significant relevance in modern diplomatic rela-
tions, but whose emergence had been entirely foreseeable at the time of the
drafting of the convention, is the provision of asylum on mission premises. The
decision to grant diplomatic asylum is adopted by agents of States with varying
political and cultural backgrounds and has caused headlines in recent years: chiefly
through the giving of asylum to Julian Assange in the premises of the Ecuadorian
Embassy in London in 2012,34 and the refuge afforded to the Chinese activist
Chen Guangcheng in the US Embassy in Beijing in the same year.35
The fact has already been mentioned that the VCDR does not provide an answer
to the underlying legal question;36 but even at the time of drafting, diplomatic asy-
lum had been able to look back on a long tradition in Latin American countries
based not only on regional customary law, but also on a multitude of treaties
dealing with the matter.37 What is more: the International Court of Justice (ICJ)
had already given judgments in two cases which had arisen from the granting of
diplomatic asylum in Peru.38
It is perhaps not surprising that it was a Latin American country (Colombia)
which suggested in the Sixth Committee that the question of asylum should be
included in the ILC debates on diplomatic law. Most committee members, how-
ever, felt that this was a different question which should not be considered at this
stage.39

UN Doc A/​CONF 20/​C 1/​L 91; Argentina and Spain, ibid 18, UN Doc A/​CONF 20/​C 1/​L 105;
Italy, ibid 28, UN Doc A/​CONF 20/​C 1/​L 198.
31  See text to n 26 above. 32  VCDR, preamble, operative para 5.
33  See, for examples, Eileen Denza, Diplomatic Law (4th edn, OUP, Oxford 2016) 320–​24.
34  See text to n 18 above.
35  Jonathan Watts, ‘Chen Guangcheng “Safe” in US Embassy’ The Guardian (London, 27 April
2012); ‘Chen Guangcheng Left US Embassy “After Family Threats” ’ BBC Online (2 May 2012)
<www.bbc.co.uk/​news/​world-​asia-​17927860>.
36  See text to n 19 above. 37  See for an overview, Behrens (n 19) 330 et seq.
38  Asylum Case (Colombia v Peru) [1950] ICJ Rep 266; Haya de la Torre Case (Colombia v Peru)
[1951] ICJ Rep 71.
39  See Behrens (n 19) 322.
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372 Diplomatic Law Today

In 1956, the year before the ILC took up its discussions, an incident occurred
outside Latin America, which was to become nothing less than the cause célèbre in
the field: the granting of asylum to Cardinal Mindszenty in the American Embassy
in Hungary. The ILC therefore was quite aware of the difficulties associated with
this phenomenon in international law. Mindszenty was to stay in the embassy
throughout its deliberations, all through the convening and conclusion of the
Vienna Conference; he was still in the embassy when the VCCR was concluded,
and even when the Convention on Special Missions was adopted.40
The provision of the VCDR which can be said to bear the closest proximity to
a regulation of asylum is Article 41(3)—​banning the use of premises of the mis-
sion ‘in any manner incompatible with the functions of the mission’ which were
formulated in the VCDR itself or laid down ‘by other rules of general international
law or by any special agreements’ between sending and receiving State. The ILC
commentary makes clear that such agreements would include ‘certain treaties gov-
erning the right to grant asylum in mission premises which are valid as between
the parties to them’.41
In States which are subject to such agreements, the granting of asylum will, con-
sequently, be considered in the context of the relevant local treaties. But the regu-
lation does not provide any help in the cases of Assange or Guangcheng or in other
instances in which one of the affected States is not party to these instruments.
The correct approach to this problem will have to take into account the pos-
ition of customary international law in this field—​but a clear position under this
source is, again difficult to derive. When the General Assembly, through resolution
3321, invited members of the United Nations to express their views on diplomatic
asylum,42 the resulting responses showed such a degree of diversity, that it would
be difficult to speak of consistent State practice and opinio iuris suggesting a clear
position on that matter.43
That does not mean that the granting of diplomatic asylum can never find a
legal basis outside the Latin American region. The fact must be taken into account
that other interests may be involved, which assist the sending State, and which
likewise have a strong basis in international law. These interests can include erga
omnes obligations owed by the receiving State; but also human rights obligations
owed by the sending State to persons under its jurisdiction.44
Yet it is, once again, not the VCDR itself which provides a solution in this area.
And there are other fields in which issues which were well appreciated by the
drafters (but whose controversial nature was understood as well) did not make it
into the Convention text—​or even into the draft articles of the ILC. At times,

40  In spite of the limitations imposed by the terms of reference, the ILC did in fact spend some
time on the discussion of diplomatic asylum. ILC Yearbook 1957 vol I, 54–​58, 220–​21. ILC Member
Fitzmaurice went so far as to suggest the inclusion of an article on that topic; but he was not successful
in that endeavour. See ibid 54, para 33.
41  ILC Yearbook 1958 vol II, 104. 42  GA Res 3321 (XXIX) (14 December 1974).
43  See Behrens (n 19) 334.
44  For a detailed assessment, see ibid, in particular 336–​48.
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Boundaries of Success: Challenges to Diplomatic Law 373

the reluctance to deal with a cumbersome problem was quite pronounced:  on

the question at what stage exactly a mission would be able to claim inviolability
of its premises, ILC Member Bartos noted that the question was ‘a very thorny
one’, and that it would be better, ‘in the absence of any established rule […] for
the Commission to refrain from mentioning the matter’.45 And where exceptions
to the personal inviolability of diplomatic agents were concerned, his colleague
Spiropoulos found that it ‘went without saying that private persons were entitled
to defend themselves when attacked by diplomatic agents’, but deemed it ‘better
to say nothing at all on the subject’.46
There is, it appears, some truth to the 1958 observation by the United States
that the language of the draft at times remained vague and ambiguous; and all too
often this appears to have been a deliberate approach. Yet, as the debate on the
definition of the diplomatic ‘family’ has shown, the ILC carries only part of the
blame:  three years after the American note verbale, the Vienna Conference was
only too happy to follow a similar course. It is, from the perspective of drafters
who seek the conclusion of an instrument within a certain timeframe, an under-
standable approach. Yet it also constitutes an important qualification to claims that
the clear language of the Convention helped to promote its extensive approval.
Language may indeed be a principal reason for its considerable popularity:  the
truth is that an instrument whose text does not dwell on some of the most contro-
versial issues in the field, attracts speedier approval than a treaty whose drafters are
prepared to boldly march into the lion’s den.

2.2 The mantle of the absolute: difficulties arising from the

meeting with other norms of international law
The second challenge to diplomatic law in the form it received through the
VCDR, is rooted in the fact that the convention is typically not the only instru-
ment which has an impact on a situation in which a diplomatic mission requires
legal assessment. Overlaps to the first challenge exist: many of these meetings of
seemingly divergent norms were certainly foreseeable at the time of ILC debates (as
the example of diplomatic asylum has shown).
And it is, again, the language of the convention which contributes to difficulties
under this category. Accessibility and terseness come at a price: clothing the rights
and obligations of diplomatic agents in absolute terms certainly allows the treaty to
be understood by a wide circle of readers, but it does not allow the consideration
of more complex (but often unavoidable) issues.
The Convention’s understanding of the immunity of diplomatic premises is one
example. Two brief sentences encompass the concept in the VCDR: they outline
the inviolability of the premises and prohibit agents of the host State to enter
them, ‘except with the consent of the head of the mission’.47

45  ILC Yearbook 1957 vol I, 53, para 17 (Bartos). 46  ibid 90, para 21 (Spiropoulos).
47  VCDR art 22(1).
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374 Diplomatic Law Today

Even at the time of drafting, the problems which absolute premises immu-
nity would engender were apparent. In January 1956, the Soviet diplomatic
mission in Ottawa refused entry to the embassy in a typical situation of emer-
gency: a fire had broken out in the building.48 But it appeared more important
to the diplomatic staff to remove documents and other items from the premises
than to grant access to firefighters. When access was finally given, it was too
late: the fire department struggled for almost six hours, but was not able to save
the building.
And yet, the consequences could have been worse. In many instances, the premises
of an embassy are located on ‘embassy row’—​a street which houses more than one
diplomatic mission. (In some cases, two diplomatic missions share the same building.)
If a mission under circumstances of this kind refuses entry to the fire brigade,
the divergent obligations of the receiving State are clear: there is a duty not to enter
the premises without consent of the head of the mission; yet towards the neigh-
bouring mission, the host is under a ‘special duty to take all appropriate steps’ to
protect its premises, too.49
This difficulty was not addressed in the VCDR. It is, in this context, interesting
to note that neither the VCCR nor the CSM repeated the absolute language of
1961. The VCCR allows for an assumption of the consent of the head of mission
‘in case of fire or other disaster requiring prompt protective action’;50 the CSM
employs similar wording (‘fire or other disaster that seriously endangers public
safety’), if it had ‘not been possible to obtain the express consent of the head of the
special mission’.51 In the case of the VCCR, the argument might be advanced that
consular missions are not necessarily clothed with the same representative charac-
ter as diplomatic missions, but the same limitation does not usually hold true in
the case of special missions.
A second example concerns the phrasing of the diplomatic bag. In this regard,
the relevant rule in the VCDR is even shorter: the Convention merely states that
‘[t]‌he diplomatic bag shall not be opened or detained’.52
The most famous incident in this field was arguably that of the former
Nigerian transport minister, Umaru Dikko, in 1984.53 In July of that year, sev-
eral Nigerian diplomats arrived at Stansted airport, trying to send off two crates
which were addressed to the Ministry of External Affairs in Lagos.54 The curios-
ity of customs officials was aroused when they noticed holes in one of the crates
and a smell of chloroform emanating from it. They proceeded to open it, and
found inside Mr Dikko—​a former member of the Nigerian government, who

48 The case according to City of Ottawa, ‘Soviet Embassy Fire’ <https://​web.archive.org/​web/​

20161022220530/​ h ttp:// ​ o ttawa.ca/ ​ e n/ ​ residents/ ​ a rts- ​ c ulture-​ a nd-​ c ommunity/​ m useums-​ a nd-​
heritage/​witness-​change-​visions-​andrews-​newton-​33>.
49  VCDR art 22(2). 50  VCCR art 31(2). 51  CSM art 25(1).
52  VCDR art 27(3).
53  See Ben Dobbin, ‘International News’ Associated Press (5 July 1984).
54  David Pallister, ‘The Strange Case of the Man in the Crate /​Dikko Kidnap’ The Guardian
(London, 13 February 1985).
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Boundaries of Success: Challenges to Diplomatic Law 375

had fallen from grace, had relocated to London, and had now become the victim
of a kidnapping plot.55
In this instance, the British government was able to claim that the crate had
not constituted a ‘proper’ diplomatic bag:  it missed the official seals which, it
appears, are accepted as one of the elements of the ‘visible external marks of their
character’ under the VCDR.56 But there have been other cases in the field which
raise questions about the possibility of opening diplomatic bags—​that of a kid-
napped Israeli citizen who was found in Italy in a diplomatic bag addressed to the
Egyptian Foreign Ministry,57 and, in a pre-​conventional case, the incident involv-
ing Baron von Rautenfels, a German courier arrested in Oslo in 1917, whose bag,
when opened, was found to contain bombs which were meant for ships leaving
Norway.58
Some of the later conventions have, again, chosen a path which deviates from
that of the VCDR: where the consular bag is concerned, the VCCR, for instance,
does allow for a request to open it ‘by an authorized representative of the sending
State’, if the receiving State has ‘serious reason to believe’ that the bag contains
items other than articles for official use.59 If the request is refused, ‘the bag shall be
returned to its place of origin’.60
But the fact that this ‘challenge procedure’ is missing in the VCDR, underlines
the difficulties arising from the absolute terms which the Convention employs.
In the Dikko case, the obvious question emerged as to what the authorities
would have done if the crate had fulfilled all procedural conditions. The British
government noted that it would ‘not hesitate to take the necessary action on the
basis of the overriding right to self-​defence or the duty to protect human life’.61
One may have sympathy with this position, but it is, again, not a view which is
immediately apparent from the VCDR, which in this context makes no reference
to competing interests at all.
A third example is the rule against diplomatic interference. Here, too, the
wording of the VCDR is terse and accessible, but ultimately unhelpful. The sec-
ond sentence of Article 41(1) simply states that persons enjoying privileges and
immunities ‘have a duty not to interfere in the internal affairs’ of the receiving
State.62 The ILC commentary provides an example for interference: in the view
of the commission, diplomats ‘must not take part in political campaigns’.63

55 ibid.
56  See on this Denza (n 33) 196–​97.
57  Denza (n 33), 203. Denza points out that Italy had not been party to the VCDR at that stage,
ibid; but the inviolability of the diplomatic bag also constitutes a rule of customary international law.
Jeffrey F Addicott, ‘The Status of the Diplomatic Bag: A Proposed United States Position’ (1991) 13
Houston Journal of International Law 221, 223–​26.
58  Denza (n 33) 203. 59  VCCR art 35(3). 60 ibid.
61 Secretary of State for Foreign and Commonwealth Affairs (UK), ‘Government Report on
Review of the Vienna Convention on Diplomatic Relations and Reply to “The Abuse of Diplomatic
Immunities and Privileges” ’ (Cmnd 9497, 1985), para 48.
62  VCDR art 41(1). 63  ILC Yearbook 1958 vol II, 104.
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376 Diplomatic Law Today

That difficulties in this context can arise when competing norms under inter-
national law are taken into consideration, has become particularly clear in more
recent years, which have seen an increased involvement of diplomatic agents in the
human rights situation in the receiving State.64
The ‘Freedom House speech’ of the British Ambassador to Uzbekistan, Craig
Murray, in 2002, is a prime example in that field. In October of that year,
Murray gave a speech at the opening of the offices of Freedom House, a US
non-​governmental organization, in Tashkent. Murray did not mince his words.
Uzbekistan, in his view, was ‘not a functioning democracy’, nor did it ‘appear to
be moving in the direction of democracy’.65 The Ambassador referred to ‘between
seven and ten thousand people in detention whom we would consider as political
and /​or religious prisoners’.66 He mentioned the practice of committing people to
psychiatric institutions to suppress dissent, the banning of political parties, torture
in prisons, and the reported boiling to death of two prisoners.67
Murray did not have to wait long for the Uzbek reaction: he was summoned to
the Foreign Ministry of that State and told that the government ‘took issue’ with
the Freedom House speech.68 What is more remarkable is that the sending State
too displayed a certain ambivalence about these statements. The speech had been
cleared with the UK Foreign Office,69 but the Ambassador still faced criticism by
his superiors. According to Murray’s memoirs, he was told that ‘[n]‌o ambassador
should ever make such a speech. That is the job of politicians. Your job is not to
undermine UK-​Uzbek relations’.70
International law, however, does recognize norms on which conduct of this kind
can be based. It accepts, in particular, that the receiving State owes certain obli-
gations not only to its own nationals, but to the international community ‘as a
whole’: the relevant interests are thus elevated to the level of erga omnes interests.
Recognized erga omnes interests include some of the most fundamental human
rights obligations,71 and they also extend to a people’s right to self-​determin-
ation.72 Diplomatic agents who therefore seek to support peoples in their struggle
to ‘freely determine their political status and freely pursue their economic, social

64 See Paul Behrens, ‘ “None of Their Business?” Diplomatic Involvement In Human Rights’
(2014) 15 Melbourne Journal of International Law 190.
65  Craig Murray, Murder in Samarkand (Mainstream, Edinburgh 2006) 109. 66 ibid.
67  ibid 108–​12; Martin Williams, ‘Human Rights Groups in Plea for Scots Envoy; Blair Is Asked
to Return Ambassador to Tashkent’ The Herald (Glasgow, 25 October 2003).
68  Murray (n 65) 122.
69  Nick Walsh, ‘The Envoy Who Said Too Much’ The Guardian (London, 15 July 2004).
70  Murray (n 65) 152. 71  See, on the whole problem, Chapter 16, section 2.2.2.
72  On the erga omnes character of the right, see Case Concerning East Timor (Portugal v Australia)
(Judgment) [1995] ICJ Rep 90, 102, para 29; Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, 199, paras 155–​56;
see also ILC Study Group on Fragmentation of International Law, Fragmentation of International
Law: Difficulties Arising from the Diversification and Expansion of International Law (18 July 2006)
A/​CN 4/​L 702 23 n 32 and Iain Scobbie, ‘Unchart(er)ed Waters? Consequences of the Advisory Opinion
on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory for the
Responsibility of the UN for Palestine’ (2005) 16 European Journal of International Law 941, 946.
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Boundaries of Success: Challenges to Diplomatic Law 377

and cultural development’,73 can base their acts on grounds of international law74
which are quite as strong as the receiving State’s right to be free from interference.
Here, too, the VCDR does not suggest a solution for the brewing conflict of
divergent norms.75 And the identification of the appropriate method of resolving
this difficulty is a complex task, whose particular challenge lies in the fact that the
legal rules which situations of this kind involve, are both provisions which reflect
essential interests of the international community. Mention has been made in a
previous chapter of the fact that conciliatory solutions—​methods which seek to
preserve the core character of each of the relevant interests—​are more likely to find
support within the international community than hierarchical approaches, and
that the principle of proportionality in particular has to play a significant role in
mediating between the affected values.76 It certainly is a mechanism whose exist-
ence has a strong basis in international law,77 and whose application leads to viable
and satisfactory results. But here again, finding the appropriate solution requires
a look beyond the boundaries of the convention and an appreciation of the entire
framework of international law. The VCDR itself keeps its silence on that point.
The result is a law that lacks the clarity which an express conventional regulation
would have conveyed and which would have gone some way to avoid disagree-
ments among States in instances marked by the co-​existence of seemingly diver-
gent mandates.

2.3 Smartphones, Skype, and WikiLeaks: The Vienna Convention

in the twenty-​first century
The third challenge to the application of the VCDR is perhaps the most obvious
one. It is constituted by factual developments—​chiefly of a technological nature—​
which took place after the entry into force of the convention, and which may be
capable of changing the parameters of the situation within which diplomatic law
today has to operate.
In this context, certain revelations about US intelligence activities, directed at
diplomatic missions, merit consideration. In 2013, information leaked by Edward
Snowden, an American systems analysts and former CIA employee, reached
the press. They revealed US surveillance activities targeting thirty-​eight diplo-
matic missions, including the Italian, French, and Greek embassies.78 According

73  International Covenant on Civil and Political Rights (adopted 19 December 1966, entry into
force 23 March 1976) 999 UNTS 171, art 1(1); International Covenant on Economic, Social and
Cultural Rights (adopted 16 December 1966, entry into force 3 January 1976) 993 UNTS 3, art 1(1).
74  See on this also Behrens (n 64) 207.
75  The ILC Commentary does suggest a solution in cases in which diplomats make representa-
tions to protect interests of the sending State and its nationals. ILC Yearbook 1958 vol II, 104, art 40,
commentary, para 2. For the difficulties which accompany that approach, see Chapter 16, section 3.
76  See Chapter 16, section 3.
77  See, in particular, Paul Behrens, Diplomatic Interference and the Law (Hart Publishing, Oxford
2016) 115.
78  Ewen MacAskill, ‘New NSA Leaks Show How US Is Bugging Its European Allies’ The Guardian
(London, 30 June 2013).
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378 Diplomatic Law Today

to a report by the German magazine Der Spiegel, methods used by the National
Security Agency included bugging of embassies, but also tapping ‘into the internal
computer cable network’.79
The development of the internet and the universal use of e-​mails as a principal
means of communication among embassies, along with attempts by receiving States
to gain access to such messages, were certainly developments which were difficult to
foresee in the 1950s. That, however, does not mean that diplomatic law as developed
through the centuries provides no lessons for situations marked by changed techno-
logical parameters.
Surveillance of diplomatic correspondence is certainly not a new phenomenon.
The case of the Portuguese envoy in the days of the English Civil War may be recalled
in that context—​a diplomat who had been so certain that his correspondence would
be intercepted by agents of the English Parliament that he sent out a packet ‘contain-
ing an old newssheet, a figure of a man hanged, and several pairs of spectacles to assist
the English parliamentary commissioners to decipher this valuable information’.80
(Parliament, on that occasion, did not distinguish itself by a sense of humour:  it
ordered the diplomat’s expulsion.)
The bugging of offices and of telephones was likewise not a new development by
the time of the ILC’s deliberations. In instances of this kind, the sometimes general
language of the VCDR may yet prove an advantage. Its Article 27, which contains
the rule that receiving States ‘shall permit and protect free communication on the
part of the mission for all official purposes’ and states that ‘official correspondence of
the mission shall be inviolable’,81 is certainly broad enough to cover modern forms of
communication. Nor is the argument entirely convincing that it may be difficult, in
the case of e-​mails, to distinguish between communication for ‘official purposes’ and
communication for ‘private purposes’. The same problem exists for more traditional
forms of communication; yet the Convention expressly authorizes diplomatic agents
to use ‘messages in code or cipher’.82 This allows at the very least an application by
analogy to electronic communications which have been sent out in encrypted form
from the diplomatic mission.
Recourse to the underlying principle behind a certain provision of the VCDR may
indeed assist in many instances in which new technology causes problems in modern
diplomatic relations. On occasion, however, the VCDR itself refers to circumstances
which appear to have been rendered obsolete in the twenty-​first century.
The operation of ‘wireless transmitters’ is a candidate for that category. Wireless
transmitters were a popular technology for diplomatic missions in the 1950s—​
according to Fitzmaurice, the ‘ “[d]‌iplomatic wireless”, as it was called, was now
quasi-​universal and had virtually superseded other means of transmitting mes-
sages’.83 He advocated regulation of their use, and the matter was subsequently

79  Laura Poitras, Marcel Rosenbach, and Holger Stark, ‘Codename “Apalachee”:  How America
Spies on Europe and the UN’ Spiegel Online (26 August 2013) <http://​www.spiegel.de/​international/​
world/​secret-​nsa-​documents-​show-​how-​the-​us-​spies-​on-​europe-​and-​the-​un-​a-​918625.html>.
80  Denza (n 33) 178–​79. 81  VCDR art 27(1) and (2). 82  VCDR art 27(1).
83  ILC Yearbook 1957 vol I, 76, para 65 (Fitzmaurice).
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Boundaries of Success: Challenges to Diplomatic Law 379

addressed in the VCDR through the clause that a diplomatic mission ‘may install
and use a wireless transmitter only with the consent of the receiving State’.84
In the ILC, Padilla Nervo had pointed out that wireless transmitters involved
questions of ‘public order’—​there would be an ‘impossible situation if some forty
embassies in the same capital went on the air over any channels they wished’.85
That appeared to have been one of the main reasons behind the norm and behind
its application thereafter.86
In the age of Skype and smartphones, and at a time when many diplomatic mis-
sions reach the world at large through dedicated websites, arguments of this kind
seem to have the charm of the quixotic.
However, some of the underlying reasons for existing restrictions on wireless
transmitters provide an opportunity to reflect even on the dissemination of diplo-
matic messages through websites and other media.
The fact in particular that the receiving State may in this regard have to comply
with obligations deriving from other treaties—​a concern which was raised even
during the debates at Vienna87—​has retained its relevance today. A treaty that
had already been concluded by the time of the ILC debates—​the Broadcasting
Convention of 1936—​has direct impact on the subject matter of the broadcast
message and contains, inter alia, the obligation of State parties to ‘stop without
delay within their respective territories any transmission likely to harm good inter-
national understanding by statements the incorrectness of which is or ought to be
known to the persons responsible for the broadcast’.88
Provisions of this kind raise the spectre of State responsibility for messages dis-
seminated on the territory of the relevant party. Cases have indeed come into
existence in which diplomatic statements were perceived as carrying harmful
messages—​in 1980, for instance, the head of the Libyan mission to the United
Kingdom approved of the decision of Libyan revolutionary committees to ‘kill two
more people’—​ie dissidents to the Gaddafi regime—​‘in the United Kingdom’ and
stated that Libya was ‘seriously thinking of cooperating with the IRA if the British
Government continues to support those Libyans who are hiding here’.89 In 2002,
the Saudi Ambassador to the UK published a poem in which he praised a young

84  VCDR art 27(1). 85  ILC Yearbook 1957 vol I, 77, para 81 (Padilla Nervo).
86  See, for a case involving the Senegalese mission in the United States in 1978, Denza (n 33)
181–​82.
87  At the Vienna Conference, the representative of the United States referred in that regard to
the ‘Applicable International Postal and Telecommunications Conventions’. Conference Records
Vol 1, 155, para 21 (Cameron). The 1959 Geneva version of the International Telecommunications
Convention had made reference, inter alia, to the obligation of State Parties ‘to limit the number of
frequencies and the spectrum space used to the minimum essential to provide in a satisfactory manner
the necessary services’. International Telecommunications Convention (adopted 21 December 1959,
entry into force 1 January 1961) TIAS 4892, art 45.
88  International Convention Concerning the Use of Broadcasting in the Cause of Peace (adopted
23 September 1936, entry into force 2 April 1938) 186 LNTS 301, art 3.
89  Michael Horsnell, ‘Gaddafi Men Sentence to Death Two Libyan exiles in London Threat to Link
with IRA’ The Times (London, 13 June 1980).
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380 Diplomatic Law Today

Palestinian suicide bomber,90 stating that she ‘died to honour God’s word’, and
that she ‘embraced death […] Doors of heaven are opened for her’.91 The possibil-
ity that, in contemporary diplomatic relations, statements of this kind may appear
on websites whose server is based in the receiving State, is obvious.
In instances of this kind, recourse to mandates of international law may assist in
addressing the challenge caused by the dissemination of certain messages through
modern media. This is certainly the case where such messages have reached the
level of incitement to terrorism.92 But it is a situation which cannot be resolved by
referring to the wording of the VCDR on its own—​it would be difficult to stretch
the provision on wireless transmitters to encompass web-​based messages as well.
Nor does this seem to have been its principal rationale: considerations of the con-
tents of the messages only enter into the evaluation of their lawfulness if additional
norms of international law are taken into account.
A third example illustrating the impact of modern technology on diplomatic
relations was provided by ‘cablegate’:  the release by WikiLeaks of hundreds of
thousands of cables sent by US embassies to the State Department.93
The leaking of embassy correspondence in such a way that an unlimited audi-
ence can gain immediate access, is a phenomenon of the twenty-​first century which
impacts on various rules of the VCDR. It raises questions about the duty of the
receiving State with regard to the inviolability of official correspondence, which
is guaranteed under Article 27(2) of the Convention. But it also raises questions
about the inviolability of archives and documents of the mission, which Article 24
seeks to protect.
And the responsibility of receiving States in that regard has indeed been put
to the test. Among the WikiLeaks revelations were the contents of a cable which
was sent by the Political Counselor of the US embassy to London to the State
Department in 2009, and which concerned the Chagos Islands. The Chagos
Islands are a British overseas territory in the Indian Ocean, which achieved sad
notoriety when, in the 1960s, the British government proceeded to expel the local
population to allow the establishment of a US military base there.94
The Chagossians had since lobbied for the right to return to the islands, but the
British government decided in 2010 to establish an ‘marine protected area’ (MPA)
there instead. The cable was revealing for the attitude of the British government
at that time. It referred to a conversation which the US Political Counselor had
had with Colin Roberts, the FCO’s director for Overseas Territories in May of
that year. According to the cable, Roberts had asserted that the British did ‘not
regret the removal of the population’, and that, according to the government’s

90  ‘Diplomat Censured Over Bomb Poem’ BBC Online (18 April 2002) <http://​news.bbc.co.uk/​
1/​hi/​uk/​1937696.stm>.
91  Paul Harris, ‘Saudi Envoy Praises Bombers’ The Observer (London, 14 April 2002).
92  See on this UNSC Res 1624 (14 September 2005), preamble, operative para 4; and para 1(a) of
the text. See also UNSC Res 1373 (28 September 2001), para 5.
93  See text to n 22.
94 See R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs,
[2014] Env LR 2, para 6 (hereinafter ‘Bancoult (2013)’).
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Boundaries of Success: Challenges to Diplomatic Law 381

current thinking, the establishment of a reserve would mean that there would be
‘no human footprints’ or ‘Man Fridays’ on uninhabited islands.95
The Chagossians sought to introduce the cable in their case against the British
government—​an initiative which, however, caused certain problems in view of the
perceived obligation under the VCDR to protect the inviolability of official corres-
pondence. In that regard, the Administrative Court relied heavily on the 1988 case
of Shearson Lehman Brothers, in which it was found that use could not be made in
court proceedings of a document that had been obtained in an illicit way, as this
would be ‘inimical to the underlying purpose’ of the protection of the inviolability
of diplomatic communications.96
The technological advances since the entry into force of the VCDR had been
touched upon by Counsel for the claimant who asserted that the correspondence,
as an ‘electronic document’, ceased to be ‘official correspondence of the mission’
once it had been transmitted by the embassy.97 The Administrative Court gave
that argument short shrift: under the ‘object and purpose’ of the VCDR, the words
‘document’ and ‘correspondence’ had to be read as including ‘modern forms of
electronic communication’.98 The Bancoult claim was dismissed by the court.99
The consequences of this reasoning are staggering. If the decision were taken as
guidance for the interpretation of Articles 24 and 27(2), the courts of receiving
States would have to pretend that they have no knowledge of leaked e-​mails, even
if they are accessible to every teenager (or silver surfer) with a working internet
connection. To a degree, the absurdity of the outcome is indeed based on a fail-
ure to take into account the character of the correspondence; although it is true
that here, too, a solution to the problem can be found through the application of
rules of interpretation which had been in place at the time of the conclusion of the
VCDR. It may go too far to state that e-​mail ceases to be diplomatic correspond-
ence once the ‘send’ button has been pushed;100 but documents which appear on
a website, can certainly no longer be said to be within the exclusive domain of the
diplomatic mission—​at the very least, they have attained dual character as both
diplomatic materials and materials in the public domain.
Publication of embassy cables on the website of a private organization also has
an impact on the options available to the receiving State. In situations of this kind,
the receiving State is in fact no longer capable of fulfilling its duties under Articles
24 and Article 27(2)—​for the simple reason that it is no longer physically possible
to guarantee the inviolability of the relevant documents. It should be noted that,
when the case in 2014 reached the Court of Appeal, the court did indeed side with
the (Chagossian) appellant on the question of the admissibility of the document,

95  Richard Mills, ‘Confidential London 00156’, 15 May 2009 in ‘US Embassy Cables: Foreign
Office Does Not Regret Evicting Chagos Islanders’ The Guardian (London, 2 December 2010), paras
7 and 8 <http://​www.theguardian.com/​world/​us-​embassy-​cables-​documents/​207149>.
96  Bancoult (2013), para 40. 97  ibid para 42.
98  ibid para 43, making one ‘possible exception’ for communication by voice only.
99  ibid para 201.
100  The argument advanced by Bancoult’s Counsel appeared to go in this direction, ibid para 42.
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382 Diplomatic Law Today

but on the basis of a somewhat different reasoning.101 (It did, however, decide that
the admission of the cable would not have changed the outcome of the case.)102
Developments of a technological nature therefore, which arose only after the
entry of the VCDR, merit a more discerning assessment. It may be tempting to
see them as the main cause for concern in relation to the applicability of an instru-
ment concluded in the 1960s. At the same time, solutions to this challenge often
require not much more than a consideration of the rationale of the relevant rules
of the VCDR. In that aspect at least, the general language of the convention might
be considered a boon: often enough, it is broad enough to embrace even changes
which have occurred decades after its entry into force.

3.  Fifty More Years? The Future of the VCDR

3.1 The state of affairs: Solutions de lege lata

In the preceding sections, attempts have been made to suggest answers to common
challenges which arise from the application of the VCDR and which are available
under the existing framework of international law. The focus has, that far, been on
the substantive law, and the solutions suggested extend to the need to take into
account additional norms of international law which may have an impact on the
existing situation,103 but also (especially where situations are concerned which are
marked by technological advances), a consideration of the rationale underlying the
relevant norms of diplomatic law.104
Options which are of relevance where the interpretation of rules of the VCDR
has reached its limit, vary depending on the circumstances of the situation. In
many instances, it will be tempting to leave the resolution of difficult issues to
bilateral agreement—​be it express or implied. The difficulties arising from the
problematic definition of the ‘family’ of the diplomatic agent, offer an example
in the field.105 In other instances, rules on a specific diplomatic issue may have
developed in a particular region, so that it might be possible to speak of particular
customary law—​the regulation of diplomatic asylum in the Latin American region
is a prime example in that regard.106
However, leaving the future of diplomatic law to bilateral and regional agree-
ments comes at a price. It does not further the development of a concept of

101  The Court of Appeal questioned the link between inviolability and inadmissibility (para 61);
but it came close to the argument of impossibility of performance when it stated that inviolability of
correspondence and archives ‘can unquestionably promote and contribute to the efficient perform-
ance of a mission’s functions in some cases. But it cannot do so where any damage that is done to a
mission by the disclosure of an archive or document has already been done by their disclosure by a
third party for which the party who wishes to adduce the evidence has no responsibility’. R (Bancoult)
v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2014] EWCA Civ 708, para 64
(hereinafter ‘Bancoult (2014)’).
102  ibid para 93. 103  See, in particular, text to nn 71–​75.
104  See, in particular, text to nn 81–​82 and to n 100 et seq. 105  See text to n 33.
106  See text to n 37.
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Fifty More Years? The Future of the VCDR 383

diplomatic law which can command general acceptance—​it promotes the frag-
mentation of diplomatic law. If it had been one of the purposes of the Convention
to contribute to the ‘improvement of relations between States’,107 then a broad
basis of consent appears more conducive to that aim than a situation in which
every State dictates its own rules on diplomatic law and thus, inescapably, creates
potential for strife.
The question may be asked, whether, at least de lege lata, more hope can in this
regard be gained from the existing institutional solutions.
Alongside the VCDR, an optional protocol on the ‘compulsory settlement of
disputes’ was concluded, which opened the possibility for State parties to refer
disputes about the interpretation of the Convention to the ICJ. In theory, this
would provide an efficient venue for cases in which sending States felt that their
diplomats had been mistreated in the host country; and it might even prove use-
ful for instances in which it is felt that diplomats themselves have overstepped
the boundaries of the permitted. The ICJ is not a criminal court, but it is at least
possible to positively establish the responsibility of the sending State, which diplo-
matic agents, as its organs, may have incurred.
And yet, the ICJ has only rarely been asked to deal with situations in which
diplomatic law took centre stage. The Asylum case and the Haya de la Torre case—​
both referring essentially to the same subject matter—​are among the rare exam-
ples in the field; and the Tehran Hostages case retains its reputation as one of the
most important illustrations for an ICJ decision on diplomatic law. A case which
Honduras brought against Brazil on the matter of alleged interference by the dip-
lomatic mission of the latter State, was later withdrawn by the appellant and thus
never reached decision stage.108
Among academic authorities, Denza has mooted the view that the length of
procedures before the ICJ may be to blame for this lack of appetite for a judicial
solution. Most of the relevant matters, she argues, ‘must be resolved speedily by
the Ministry of Foreign Affairs and other authorities of the receiving State […]’.
It is a somewhat generalizing opinion: the fact remains that the ICJ, if suitably
motivated, can act very quickly and has done so in the past.109
A more convincing reason is provided by the fact that the binary nature of judi-
cial decisions often yields results which come at a cost to the pride of the State
whose position had not been affirmed. The possibility of a (quite public) loss of
face is not an outcome which many States cherish. That is a consideration which
applies in equal measure to arbitral awards: while the parties before an arbitration

107  UNGA Res 685 (VII) (5 December 1952), operative para 3.

108  Certain Questions Concerning Diplomatic Relations (Honduras v Brazil) [2010] ICJ Rep
303, 304.
109 In the LaGrand Case, for instance, Germany filed an Application Instituting Proceedings
against the USA with the ICJ on 2 March 2016. On the same day, the Vice-​President of the Court
called on the USA to ‘act in such a way as to enable any Order the Court will make on the request
for provisional measures to have its appropriate effects’. Provisional measures were indicated by the
ICJ on 3 March 2016. LaGrand Case (Germany v United States of America) [2001] ICJ Rep 466, 470,
paras 1 and 3.
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384 Diplomatic Law Today

tribunal may have a greater say in the determination of the procedure, an arbitral
award still carries authority and will usually mean that a ‘winner’ and a ‘loser’
emerges from the proceedings.
Linked to that consideration is the fact that disputes arising in diplomatic law
often involve a political aspect. The fact must be borne in mind that diplomats are
not only organs of the State, but are their governments’ representatives abroad, and
their decisions therefore reflect on the position taken by the respective administra-
tions. In many situations, one may ask whether a judicial decision would really
have helped to resolve the relevant issue. It took more than a decade to reach
agreement on Cardinal Mindszenty’s departure from the American embassy in
Budapest, and when this was achieved, it was done on the basis of a political
deal. Would it really have possible to include the political give-​and-​take that that
involved, in a decision by a court or an arbitral tribunal?

3.2 Looking ahead: Solutions de lege ferenda

Considering the future of the VCDR is not a feat of political fiction. Future solu-
tions can be validly based on existing structures—​on methods which have been
employed by the international community with regard to other aspects of diplo-
matic law, or even on structural changes which were used in altogether different
areas of the law, but which offer valid analogies for diplomatic law.
But solutions which are based on an amendment of the Convention face diffi-
culties from the outset. The VCDR—​unlike some later multilateral treaties—​does
not provide for an ‘Assembly of State Parties’110 or for regular review confer-
ences.111 Changing the treaty with effect for all parties would therefore have to be
done with the consent of all parties,112 and it is questionable whether it is realistic
to expect consensus on such a broad basis. The difficulty of finding acceptance on
the concept of diplomatic asylum113 and on the diplomatic bag114 points in a dif-
ferent direction.
It is, of course, always possible to conclude a third optional protocol to the
VCDR, binding only on those parties that agree to it. But such a protocol faces the
difficulty regularly encountered by additional treaties of that kind. If they include
new obligations on the ratifying States, members of the international community
will wonder why they should become party to an instrument that puts them in a

110  See ICCSt, art 112.

111  See, on the option of review conferences, eg Convention on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects (adopted 10 October 1980, entry into force 2 December 1983) 1342 UNTS
137, art 8; ICCSt art 121.
112  That situation may be compared, for instance, to ICCSt art 121(3), under which amendments
can be agreed by a two-​thirds majority of State parties.
113  See Behrens (n 19) 323.
114  See, for an overview of the ILC’s work on the diplomatic bag (and its failure to reach codifica-
tion), ILC, ‘Summaries of the Work of the International Law Commission: Status of the Diplomatic
Courier and the Diplomatic Bag not Accompanied by the Diplomatic Courier (15 July 2015) <http://​
legal.un.org/​ilc/​summaries/​9_​5.shtml>.
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Fifty More Years? The Future of the VCDR 385

worse position than those that declared to be bound only by the original treaty. If
it contains no changes to the existing situation, the question may be asked why it
was necessary to conclude the protocol in the first place.
The fact remains that even the two optional protocols which were concluded
on the same day as the VCDR, proved far less popular than the main treaty. The
first Optional Protocol (concerning Acquisition of Nationality) has, to date, fifty-​
one parties.115 The second Optional Protocol (on the compulsory settlement of
disputes) has sixty-​nine parties.116
The argument can be made that a third protocol might at least help to clar-
ify certain positions—​eg on the relationship of various norms of diplomatic law
which seem to go in different directions (such as rules on the tasks of the diplo-
matic missions and the rule against interference) or the relationship between dip-
lomatic law and other fields of international law. But it would be wrong to believe
that even a limitation to that extent would not result, in the eyes of many States, in
obligations which differ from those they assumed under the VCDR. This not only
puts in doubt the popularity of such a protocol, but also raises concerns about the
potential fragmentation of diplomatic law.
A change which has been mooted from time to time as a possible amendment
of diplomatic law—​on the institutional level, rather than the level of substan-
tive law—​is the establishment of a permanent court for diplomatic agents. Such a
court, it is argued, could serve to fill the gap created by the fact that diplomats who
abuse their positions, regularly escape punishment in the receiving State. Groff
thus suggests an ‘international diplomatic court’ which provides a ‘fair and impar-
tial forum, administered by an international judiciary’ and in which diplomats can
expect to receive a ‘fair hearing’.117 Wright notes that a ‘ “Permanent International
Diplomatic Criminal Court” would be useful to provide an acceptable means of
adjudicating offenses arising under the partial repeal of diplomatic immunity’,118
and provides detailed suggestions regarding the composition of the court, its mode
of procedure (inquisitorial rather than adversarial), investigators, and attorneys
attached to the court.119
But the proposal of a diplomatic court faces challenges which are difficult to
surmount. The costs of such a system may well serve to dampen international
enthusiasm for such an institution—​as it did in the case of the ad hoc international

115  United Nations Treaty Collection, Optional Protocol to the Vienna Convention on Diplomatic
Relations, Concerning Acquisition of Nationality, Vienna, 18 April 1961 (8 December 2016) <https://​
treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=III-​4&chapter=3&clang=_​en>.
116 United Nations Treaty Collection, Optional Protocol to the Vienna Convention on
Diplomatic Relations, Concerning the Compulsory Settlement of Disputes, Vienna, 18 April 1961
(8 December 2016) <https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=III-​
5&chapter=3&clang=_​en>.
117 Joshua Groff, ‘A Proposal for Diplomatic Accountability Using the Jurisdiction of the
International Criminal Court:  The Decline of an Absolute Sovereign Right’ (2000) 14 Temple
International and Comparative Law Review 209, 228.
118  Stephen Wright, ‘Diplomatic Immunity: A Proposal for Amending the Vienna Convention to
Deter Violent Criminal Acts’ (1987) 5 Boston University International Law Journal 177, 185.
119  ibid 187.
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386 Diplomatic Law Today

criminal tribunals.120 It may also be difficult to find consensus within the inter-
national community on the precise forms of conduct that would trigger the juris-
diction of such a court—​the fact must be taken into account that, at present, the
Vienna Convention only provides the general rule that diplomatic agents have ‘to
respect the laws and regulations of the receiving State’.121
Most of all, however, the establishment of a diplomatic court invokes, once
again, the problem of binary decisions and the resulting loss of face at least for one
of the States participating in a case before such a body. Certain powers of a tribunal
of this kind—​Groff ’s court would have the power to administer ‘appropriate pun-
ishment […], such as incarceration’122—​would even exacerbate the situation. If it
had been difficult enough to attract a good number of State parties to the second
optional protocol, the chances of a third protocol, establishing a criminal court for
representatives of a State, would not appear to be any better.
A permanent diplomatic court would also not be able to take into account
the above-​mentioned fact that disputes in this field are not always exclusively
‘about the law’, but that political factors often shape the relevant situations. In that
regard, a solution may offer itself to sending and receiving States alike, which is
available even under existing mechanisms of international law: ie, the possibility
of mediation.
The employment of mediation in diplomatic relations is not an entirely new
phenomenon (Algeria, for instance, mediated in the hostage crisis in 1980 between
the United States and Iran).123 The hallmark of mediation is that it does not move
within the strict judicial framework that determines ICJ procedure and proceed-
ings before an arbitral tribunal. The focus of mediation is not on determining the
law in a particular case, but on finding a solution which is mutually acceptable.
Mediation is often carried out by third States which do not have an interest in the
case, but with increasing frequency also by individuals. Mediators observe condi-
tions of strict confidentiality and seek to ascertain the interests of the relevant
parties (which can include interests of a political nature), but they also outline the
consequences of various courses of action (which can include consequences of a
political nature).
One of the most prominent examples of mediation—​the Beagle mediation, aris-
ing from a dispute between Argentina and Chile regarding the Beagle Channel and
certain islands—​illustrates some of the features of the process.124 It is of particular

120 And indeed, in the case of the International Criminal Court. See for an overview, Jon
Silverman, ‘Ten Years, $900m, One Verdict: Does the ICC Cost Too Much?’ BBC Online (14 March
2012) <http://​www.bbc.co.uk/​news/​magazine-​17351946>; see also Lori Shapiro, ‘Foreign Relations
Law: Modern Developments in Diplomatic Immunity’ (1989) Annual Survey of American Law, 281,
297. For references relating to the ad hoc tribunals, see Chapter 1, n 69.
121  VCDR art 41(1). See also Shapiro (n 120), 297. 122  Groff (n 117) 228.
123  Francisco Orrego Vicuña, ‘Mediation’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of
Public International (OUP, Oxford 2012) para 25.
124 On the history of the dispute, see Lisa Lindsey, ‘The Beagle Channel Settlement:  Vatican
Negotiation Resolves a Century-​Old Dispute’ (1987) 29 J Church & St 435, 436–​37; and Thomas
Princen, ‘International Mediation –​The View from the Vatican’ (1987) 3 Negotiation Journal 347.
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Fifty More Years? The Future of the VCDR 387

interest, because the parties had already resorted to arbitration, but the arbitral
award did not help to resolve the conflict.125
When, in the late 1970s, the parties were getting close even to military con-
flict over the matter,126 formal mediation procedures were eventually accepted by
both States, with the Pope acting as a mediator.127 On the Vatican side, Cardinal
Antonio Samorè was the principal agent in these proceedings. Samorè began by
establishing the interests of the respective countries, and engaged in extensive shut-
tle diplomacy between Argentina and Chile in the pursuit of his mission.128 The
result of mediation in this instance was reached only after several years of negoti-
ation, in the form of the 1984 Treaty of Peace and Friendship.129
Samorè summed up the characteristics of mediation as follows: it is a process
requested by the parties themselves; the mediator is ‘a third party, friend to both’,
who makes an effort ‘to take their initial positions towards convergence’. Mediation
is a ‘form of suggestion, an advice, an exhortation’ and marked by ‘proposals aim-
ing at eliminating differences, overcoming obstacles, finding points of concord
[…] [a]‌t the end of mediation, in fact, it is never possible to speak of victors or
defeated. There can be none’.130
On that basis, it is clear that mediation is particularly well suited to taking into
account the complexity of a diplomatic dispute—​to a degree which judicial or
arbitration proceedings can never hope to achieve. It can reflect the political factors
that so often play a role in matters of this kind, avoid the loss of face that would,
almost inevitably, be the outcome of a judicial decision, and serve to restore the
good state of relations between States which had been disrupted by the relevant
incident.
A change of the VCDR or its protocols is not necessary to achieve that—​
mediation already exists as an option under general international law and is in fact
envisaged as a method for the peaceful settlement of disputes in Article 33 of the
UN Charter. But there is certainly no obstacle to expressly refer to it in a protocol
to the Convention (and a protocol of that kind may have greater chances of suc-
cess than a protocol establishing a highly controversial diplomatic court). There are
precedents for that: the World Intellectual Property Organization, for one, has an
‘Arbitration and Mediation Center’131 (whose success rate is particularly impres-
sive where mediation is concerned),132 and there is no reason why a body like that

125  Lindsey (n 124) 437–​39. 126  ibid 439–​41.

127  Argentina and Chile, Agreement to Accept Papal Mediation of Dispute Involving the Beagle
Channel Region (Montevideo, 8 January 1979), Annex I, (1979) 18 ILM 1.
128 On Samorè’s work, see Julie Folger, ‘A Proposal to End the Stalemate in the Caspian Sea
Negotiations’ (2002–​2003) 18 Ohio St J Disp Resol 529, 558, n 124; Princen (n 124) 349–​64 (see,
in particular, 352 for the initial request for position statements); Lindsey (n 124) 444–​48.
129  Treaty of Peace and Friendship (Argentina and Chile) (adopted 29 November 1984) (1985)
24 ILM 11.
130  Orrego Vicuña (n 123) para 44.
131  On its work, see Ignacio de Castro and Panagiotis Chalkias, ‘Mediation and Arbitration of
Intellectual Property Disputes. The Operation of the World Intellectual Property Organization
Arbitration and Mediation Center’ (2012) 24 Singapore Academy of Law Journal 1059.
132  In 2012, it was noted that 68% of mediations administered by the Center had resulted in settle-
ment (by comparison to only 42% of arbitrations). ibid 1067–​68.
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388 Diplomatic Law Today

could not be established for the purpose of settling disputes in diplomatic law. It
is a solution which does not carry the dividing potential of court proceedings, but
which recognizes the diverging interests which give shape to the position of States
involved in a dispute of that kind.

4.  Concluding Thoughts

The popularity of the Vienna Convention on Diplomatic Relations is, today,
beyond reasonable doubt. The fact that subsequent protocols and attempts to
amend the Convention had never achieved much traction in the international
community, serves to strengthen, rather than weaken, that point:  it underlines
the fact that members of the international community hold the original treaty in
sufficiently high esteem to be suspicious of subsequent attempts to add to it or to
modify its provisions.
And it is interesting to take into account that this level of confidence about the
codification of diplomatic law had not always existed. Mention has already been
made of the objections raised by the United States in 1958,133 and the perception
of ambiguous language was not the only reason that informed that position. The
US Acting Representative to the United Nations also voiced doubts about the
success of any such undertaking: ‘It is unlikely,’ read the relevant communication,
‘that a significant number of Governments would become parties to a multilateral
convention of this character. Governments have consistently shown a reluctance
to enter into multilateral treaties which prescribe rules for the treatment of diplo-
matic representatives of one Government in the territory of the other’.134 The great
number of States which the Convention has been able to attract to date, tells a dif-
ferent story: on that occasion, at least, the diplomatic crystal ball had not pointed
in the right direction.
But the VCDR has seen its share of challenges; and fifty years into its lifetime,
it is legitimate to ask the question whether it has indeed served to fulfil the expec-
tations that were associated with it: primarily, the need for clarity and precision
which had prompted the decision to proceed to the codification of diplomatic law
in the first place.135
A surprising conclusion in that regard derives from the fact that it is not so
much technological advances which cause the greatest difficulty pertaining to the
application of the convention today. Neither the emergence of the internet, nor
that of smartphones and netbooks does fundamentally change the character of the
relevant rules. Diplomatic correspondence still requires inviolability, and the step
from the use of cipher to the use of encrypted e-​mails is short enough to allow for
the application of a justifiable analogy.

133  See text to n 24 above. 134  ILC Yearbook 1958 vol II, 133, United States, at 1.
135  See text to n 17 above.
 389

Concluding Thoughts 389

The question of (potential) norm conflicts and the gaps deliberately left in
the convention, may result in a situation which is more difficult to approach.
But even in that regard, the situation has not fundamentally changed from that
which observers of diplomatic law would have found in the 1960s. The problem
of resolving the meeting of diplomatic immunity and the right to self-​defence had
existed even in Grotius’ days.136 The fact that no codified international rules on
diplomatic asylum exist is regrettable, but that, too, is not a novel development: it
reflects a problem that preceded the ILC debates by a long time. Nor are the
mechanisms which are employed today to deal with difficulties of that kind dif-
ferent from those which were available to the users of the VCDR when the treaty
first entered into force.
A much greater problem is occasioned by a change which may have been fore-
seeable, but which only gradually entered public awareness in the decades after the
Second World War: the rise of the individual in international law.
Early indications of that change were, with regard to the personal protection of
diplomatic agents, particularly observable in the 1970s. The rules of diplomatic
immunity and inviolability still stood, as they had since the days of Byzantium.137
But the chief danger no longer came from receiving States, who, by and large,
respected the person of the diplomatic agent. The danger suddenly came from
groups called Fuerzas Armadas Rebeldes,138 Settam-​e-​Melli,139 Popular Front for
the Liberation of Palestine,140 Rote Armee Fraktion,141 Irish Republican Army,142
and others.
Attacks carried out by groups of that kind led, in 1973, to the conclusion of the
Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents (‘Internationally Protected

136  Cf Eileen Young, ‘The Development of the Law of Diplomatic Relations’ (1964) 40 BYIL
141, 152.
137  See ibid 145.
138  See on the kidnapping of the German Ambassador, Count Spreti, by the FAR in 1970: Edgar
Calderon, ‘Guatemala con primer secuestro de alto funcionario tras firma de paz en 1996’ Agence
France Presse  –​Spanish (27 February 2002); Esteban Engel, ‘Deutscher Diplomat 1970 entführt’
Nürnberger Nachrichten (19 December 1996).
139  Cf in this regard the kidnapping of the US Ambassador to Afghanistan, Adolph Dubs, in 1979,
Maya Shwayder, ‘The Honored Dead:  Other Ambassadors And Diplomats Killed In The Line Of
Service’ International Business Times (12 September 2012).
140  In 1976, the US Ambassador to Lebanon was kidnapped at a checkpoint of the Popular Front
(PFLP). Hours later, he was found dead. Three PFLP members were accused of the crime and sen-
tenced to life imprisonment by a Lebanese court in 1994, but in 1996, two of them were found to
be covered by a general amnesty that had been passed in 1991. ‘Acquittals in Killing of U.S. Envoy’
Washington Post (14 March 1996); ‘Beirut Trial Ends in U.S. Envoy Slaying’ United Press International
(31 January 1996).
141  The German military attaché Andreas von Mirbach was killed in Stockholm in 1975 by mem-
bers of the Red Army Faction. ‘Red Army Faction Member Taufer Freed After 20 Years for Sweden
Murders’ Associated Press Worldstream, 26 April 1995.
142  The Irish Republican Army claimed responsibility for the 1976 death of Christopher Ewart-​
Biggs, the UK Ambassador to Ireland, who was killed when a land mine exploded under his car: Leonard
Downie, ‘British Envoy To Netherlands Shot to Death’ Washington Post (23 March 1979).
390

390 Diplomatic Law Today

Persons Convention’) which, at the time of writing, has 180 parties.143 Under
the convention, States agree to make certain crimes against internationally pro-
tected persons (including diplomats) punishable under their domestic law.144 The
importance of this treaty in inter-​State relations should not be underestimated,
but the instrument has certainly not made attacks against diplomatic agents dis-
appear. The killing of the US Ambassador to Libya in 2012, Christopher Stevens,
by Islamic militants,145 is a sad illustration of the fact that crimes of this kind have
not vanished from the international plane.
It is not the only field of diplomatic relations in which the impact of individuals
and groups is felt. The discussion of ‘cablegate’ has shown that the increased influ-
ence of individual actors can result in the complete destruction of any meaningful
protection of diplomatic correspondence and diplomatic archives.
And yet, the question may be asked whether the fault for these development lies
with the VCDR, and whether, in fact, any international treaty can be expected to
deal satisfactorily with situations of this kind. By and large, international law is
still a system whose main addressees are States themselves. Addressing individuals
is a more complex issue, which requires a combination of different approaches to
reach its greatest degree of efficiency—​the mandates of domestic criminal law and
general educational initiatives among them. It is well possible that this may consti-
tute one of the major challenges to diplomatic relations in the twenty-​first century.
The question, however, whether the VCDR itself has fulfilled its expectations,
cannot stop at this stage.
What this examination has shown is that a number of factors—​both foreseeable
and unforeseeable at the time of the drafting of the Convention—​exert an impact
on the ability of the VCDR to deal with the challenges that contemporary diplo-
matic law faces, and that, in more than one case, the claim that the clarity of the
treaty provides viable solutions, requires repositioning.
But a comprehensive study also has to take into account the state of diplomatic
relations that would prevail without the existence of a treaty of this kind capable
of governing key aspects of diplomatic life today. In that regard, however, denying
the accomplishments of the Convention could hardly be the result of an honest
reflection. The fact, in particular, cannot be ignored that the VCDR did clarify the
law in a multitude of essential situations and, in doing so, laid to rest more than
one controversy.

143  Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents (adopted 14 December 1973, entry into force 20 February
1977) 1035 UNTS 167 (hereinafter ‘Internationally Protected Persons Convention’). United
Nations Treaty Collection, Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents, New York, 14 December 1973 (8
December 2016) <https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=XVIII-​
7&chapter=18&clang=_​en>.
144  Internationally Protected Persons Convention, art 2(2).
145  ‘US Confirms its Libya Ambassador Killed in Benghazi’ BBC Online (12 December 2012)
<http://​www.bbc.co.uk/​news/​world-​africa-​19570254>.
 391

Concluding Thoughts 391

It clarified the fact that receiving States are within their right to declare a diplo-
matic agent persona non grata, without having to provide reasons—​a point which
was still the subject of considerable debate in the nineteenth century.146 It clarified
the status of administrative and technical staff and, importantly, the ‘suite’ of the
diplomatic agents—​issues which had not been settled in diplomatic law through
the ages.147 It clarified the situation of diplomatic agents who are nationals of the
receiving State or resident therein.148 It clarified the question of immunity apply-
ing to diplomats who own immovable property in the receiving State.149 It clarified
the question whether two or more States can be represented by the same diplo-
matic agent.150 It simplified the ranks of heads of missions.151 It included, for the
first time in codified diplomatic law, a list of the functions of the mission152—​an
important aspect for the evaluation of the many situations in which the hosts claim
that diplomatic agents have acted in a manner ‘incompatible with their functions’.
This effort on its own has been of invaluable help in identifying the consensus
which exists in the international community on the relevant matters of diplo-
matic law. And these are not questions which represent merely isolated points on a
selected subject matter: taken together, they provide an extensive framework that
lays down rules on wide areas of diplomatic life and work in the receiving State.
Its achievements, however, reach beyond the clarification of controversial issues.
The fact must be kept in mind that Yugoslavia’s call in 1952 for a text that would
provide ‘definite and precise rules’ in the field153 was not only a call for clarity.
It was born of concerns about the state of diplomatic relations, as she saw it: the
Explanatory Memorandum which was sent at the time to the Secretary-​General of
the United Nations, made express reference to recent ‘violations of the rules of dip-
lomatic intercourse and immunities’ that had become ‘increasingly frequent’.154
The adoption of clear rules was seen as a remedy to the ongoing situation.155
The General Assembly took up that theme and stated its view, in the same year,
that the codification of diplomatic law was ‘necessary and desirable as a contri-
bution to the improvement of relations between States’.156 In a similar vein, the
preamble of the Vienna Convention expresses the belief that a convention in this
field would ‘contribute to the development of friendly relations among nations,
irrespective of their differing constitutional and social systems’.157

146  See, for today’s regulation, VCDR art 9(1). For an incident that caused controversy in the nine-
teenth century, see the rejection of Mr Keiley as US Ambassador to the Austro-​Hungarian empire, ILC
Yearbook 1957 vol I, para 13 (Yokota).
147  See VCDR art 37. Bynkershoek, for instance, still distinguished between members appointed
by the Ambassador and those appointed by the ‘sovereign’, with regard to the treatment they may
receive if wanted by the authorities of the receiving State, Young (n 136) 163.
148  See VCDR art 38. 149  See VCDR art 31(1)(a). 150 VCDR art 6.
151  VCDR art 14. See Young (n 136)  166–​68 on the previous problem of the ‘proliferation of
classes’ and about efforts at Vienna in 1815 to achieve a simplification of the system.
152 VCDR art 3. 153  See text to n 17 above.
154  ILC Yearbook 1956 vol II, 131.
155  ibid, and see Chapter 5 above for the background to this initiative.
156  UNGA Res 685 (VII) (5 December 1952), operative para 3.
157  VCDR preamble, operative para 3.
392

392 Diplomatic Law Today

There is little doubt that, where this ambitious aim is concerned, the evaluation
of the VCDR has to remain on the positive side. Harmonization is a key element
in that assessment: a treaty which manages to regulate a wide area while still rely-
ing on a genuine meeting of minds within the international community, will by
necessity exercise an important influence on the fulfilment of this objective. It is
the identification of a common set of values and principles, spanning the entire
field of diplomatic law, that must be held to be the most significant contribution
which its drafters made to a purpose of international law which is more important
than ever before. Fifty-​five years after its adoption, the Vienna Convention has
rightfully earned a distinction which, to that degree, few instruments of inter-
national law can rival: it stands as a milestone on the path to international peace
and understanding.
 39

ANNEX

Vienna Convention on Diplomatic Relations (1961)

The States Parties to the present Convention,1

Recalling that peoples of all times have recognized the status of diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations con-
cerning the sovereign equality of States, the maintenance of international peace and secur-
ity, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges, and
immunities would contribute to the development of friendly relations among nations, irre-
spective of their differing constitutional and social systems,
Realizing 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 represent-
ing States,
Affirming that the rules of customary international law should continue to govern ques-
tions not expressly regulated by the provisions of the present Convention,
Have agreed as follows:

Article 1
For the purpose of the present Convention, the following expressions shall have the mean-
ings hereunder assigned to them:
(a) the ‘head of the mission’ is the person charged by the sending State with the duty of
acting in that capacity;
(b) the ‘members of the mission’ are the head of the mission and the members of the staff
of the mission;
(c) the ‘members of the staff of the mission’ are the members of the diplomatic staff, of the
administrative and technical staff and of the service staff of the mission;
(d) the ‘members of the diplomatic staff ’ are the members of the staff of the mission having
diplomatic rank;
(e) a ‘diplomatic agent’ is the head of the mission or a member of the diplomatic staff of
the mission;
(f ) the ‘members of the administrative and technical staff ’ are the members of the staff of
the mission employed in the administrative and technical service of the mission;
(g) the ‘members of the service staff ’ are the members of the staff of the mission in the
domestic service of the mission;
(h) a ‘private servant’ is a person who is in the domestic service of a member of the mission
and who is not an employee of the sending State;

1  From 500 UNTS 95. Reprinted with permission of the United Nations.
394

394 Vienna Convention on Diplomatic Relations (1961)

(i) the ‘premises of the mission’ are the buildings or parts of buildings and the land ancil-
lary thereto, irrespective of ownership, used for the purposes of the mission including
the residence of the head of the mission.

Article 2
The establishment of diplomatic relations between States, and of permanent diplomatic
missions, takes place by mutual consent.

Article 3
1. The functions of a diplomatic mission consist inter alia in:
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its nation-
als, 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.
2. Nothing in the present Convention shall be construed as preventing the performance of
consular functions by a diplomatic mission.

Article 4
1. The sending State must make certain that the agrément of the receiving State has been
given for the person it proposes to accredit as head of the mission to that State.
2. The receiving State is not obliged to give reasons to the sending State for a refusal of
agrément.

Article 5
1. The sending State may, after it has given due notification to the receiving States con-
cerned, accredit a head of mission or assign any member of the diplomatic staff, as the
case may be, to more than one State, unless there is express objection by any of the
receiving States.
2. If the sending State accredits a head of mission to one or more other States it may estab-
lish a diplomatic mission headed by a chargé d’affaires ad interim in each State where
the head of mission has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as rep-
resentative of the sending State to any international organization.
 395

Vienna Convention on Diplomatic Relations (1961) 395

Article 6
Two or more States may accredit the same person as head of mission to another State, unless
objection is offered by the receiving State.

Article 7
Subject to the provisions of Articles 5, 8, 9 and 11, the sending State may freely appoint the
members of the staff of the mission. In the case of military, naval or air attachés, the receiv-
ing State may require their names to be submitted beforehand, for its approval.

Article 8
1. Members of the diplomatic staff of the mission should in principle be of the nationality
of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among per-
sons having the nationality of the receiving State, except with the consent of that State
which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State
who are not also nationals of the sending State.

Article 9
1. The receiving State may at any time and without having to explain its decision, notify
the sending State that the head of the mission or any member of the diplomatic staff of
the mission is persona non grata or that any other member of the staff of the mission is
not acceptable. In any such case, the sending State shall, as appropriate, either recall the
person concerned or terminate his functions with the mission. A person may be declared
non grata or not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations
under paragraph 1 of this Article, the receiving State may refuse to recognize the person
concerned as a member of the mission.

Article 10
1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be
agreed, shall be notified of:
(a) the appointment of members of the mission, their arrival and their final departure
or the termination of their functions with the mission;
(b) the arrival and final departure of a person belonging to the family of a member of
the mission and, where appropriate, the fact that a person becomes or ceases to be
a member of the family of a member of the mission;
396

396 Vienna Convention on Diplomatic Relations (1961)

(c) the arrival and final departure of private servants in the employ of persons referred
to in sub-​paragraph (a) of this paragraph and, where appropriate, the fact that they
are leaving the employ of such persons;
(d) the engagement and discharge of persons resident in the receiving State as members
of the mission or private servants entitled to privileges and immunities.
2. Where possible, prior notification of arrival and final departure shall also be given.

Article 11
1. In the absence of specific agreement as to the size of the mission, the receiving State may
require that the size of a mission be kept within limits considered by it to be reasonable
and normal, having regard to circumstances and conditions in the receiving State and
to the needs of the particular mission.
2. The receiving State may equally, within similar bounds and on a nondiscriminatory
basis, refuse to accept officials of a particular category.

Article 12
The sending State may not, without the prior express consent of the receiving State, estab-
lish offices forming part of the mission in localities other than those in which the mission
itself is established.

Article 13
1. The head of the mission is considered as having taken up his functions in the receiving
State either when he has presented his credentials or when he has notified his arrival
and a true copy of his credentials has been presented to the Ministry for Foreign Affairs
of the receiving State, or such other ministry as may be agreed, in accordance with the
practice prevailing in the receiving State which shall be applied in a uniform manner.
2. The order of presentation of credentials or of a true copy thereof will be determined by
the date and time of the arrival of the head of the mission.

Article 14
1. Heads of mission are divided into three classes, namely:
(a) that of ambassadors or nuncios accredited to Heads of State, and other heads of
mission of equivalent rank;
(b) that of envoys, ministers and internuncios accredited to Heads of State;
(c) that of chargés d’affaires accredited to Ministers for Foreign Affairs.
2. Except as concerns precedence and etiquette, there shall be no differentiation between
heads of mission by reason of their class.

Article 15
The class to which the heads of their missions are to be assigned shall be agreed between States.
 397

Vienna Convention on Diplomatic Relations (1961) 397

Article 16
1. Heads of mission shall take precedence in their respective classes in the order of the date
and time of taking up their functions in accordance with Article 13.
2. Alterations in the credentials of a head of mission not involving any change of class shall
not affect his precedence.
3. This article is without prejudice to any practice accepted by the receiving State regarding
the precedence of the representative of the Holy See.

Article 17
The precedence of the members of the diplomatic staff of the mission shall be notified by the
head of the mission to the Ministry for Foreign Affairs or such other ministry as may be agreed.

Article 18
The procedure to be observed in each State for the reception of heads of mission shall be
uniform in respect of each class.

Article 19
1. If the post of head of the mission is vacant, or if the head of the mission is unable to
perform his functions, a chargé d’affaires ad interim shall act provisionally as head of
the mission. The name of the chargé d’affaires ad interim shall be notified, either by the
head of the mission or, in case he is unable to do so, by the Ministry for Foreign Affairs
of the sending State to the Ministry for Foreign Affairs of the receiving State or such
other ministry as may be agreed.
2. In cases where no member of the diplomatic staff of the mission is present in the receiv-
ing State, a member of the administrative and technical staff may, with the consent of
the receiving State, be designated by the sending State to be in charge of the current
administrative affairs of the mission.

Article 20
The mission and its head shall have the right to use the flag and emblem of the sending
State on the premises of the mission, including the residence of the head of the mission,
and on his means of transport.

Article 21
1. The receiving State shall either facilitate the acquisition on its territory, in accordance
with its laws, by the sending State of premises necessary for its mission or assist the lat-
ter in obtaining accommodation in some other way.
398

398 Vienna Convention on Diplomatic Relations (1961)

2. It shall also, where necessary, assist missions in obtaining suitable accommodation for
their members.

Article 22
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 mission shall be immune from search, requisition, attach-
ment, or execution.

Article 23
1. The sending State and the head of the mission shall be exempt from all national,
regional, or municipal dues and taxes in respect of the premises of the mission, whether
owned or leased, other than such as represent payment for specific services rendered.
2. The exemption from taxation referred to in this Article shall not apply to such dues and
taxes payable under the law of the receiving State by persons contracting with the send-
ing State or the head of the mission.

Article 24
The archives and documents of the mission shall be inviolable at any time and wherever
they may be.

Article 25
The receiving State shall accord full facilities for the performance of the functions of the
mission.

Article 26
Subject to its laws and regulations concerning zones entry into which is prohibited or regu-
lated for reasons of national security, the receiving State shall ensure to all members of the
mission freedom of movement and travel in its territory.

Article 27
1. The receiving State shall permit and protect free communication on the part of the
mission for all official purposes. In communicating with the Government and the
 39

Vienna Convention on Diplomatic Relations (1961) 399

other missions and consulates of the sending State, wherever situated, the mission may
employ all appropriate means, including diplomatic couriers and messages in code or
cipher. However, the mission may install and use a wireless transmitter only with the
consent of the receiving State.
2. The official correspondence of the mission shall be inviolable. Official correspondence
means all correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of
their character and may contain only diplomatic documents or articles intended for
official use.
5. The diplomatic courier, who shall be provided with an official document indicating his
status and the number of packages constituting the diplomatic bag, shall be protected
by the receiving State in the performance of his functions. He shall enjoy personal
inviolability and shall not be liable to any form of arrest or detention.
6. The sending State or the mission may designate diplomatic couriers ad hoc. In such
cases the provisions of paragraph 5 of this Article shall also apply, except that the immu-
nities therein mentioned shall cease to apply when such a courier has delivered to the
consignee the diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled
to land at an authorized port of entry. He shall be provided with an official docu-
ment indicating the number of packages constituting the bag but he shall not be
considered to be a diplomatic courier. The mission may send one of its members
to take possession of the diplomatic bag directly and freely from the captain of the
aircraft.

Article 28
The fees and charges levied by the mission in the course of its official duties shall be exempt
from all dues and taxes.

Article 29
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.

Article 30
1. The private residence of a diplomatic agent shall enjoy the same inviolability and pro-
tection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of Article 31, his
property, shall likewise enjoy inviolability.
40

400 Vienna Convention on Diplomatic Relations (1961)

Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction, except
in the case of:
(a) 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 the purposes of
the mission;
(b) an action relating to succession in which the diplomatic agent is involved as execu-
tor, administrator, heir or legatee as a private person and not on behalf of the send-
ing State;
(c) an action relating to any professional or commercial activity exercised by the diplo-
matic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the
cases coming under sub-​paragraphs (a), (b) and (c) of paragraph 1 of this Article, and
provided that the measures concerned can be taken without infringing the inviolability
of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does
not exempt him from the jurisdiction of the sending State.

Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immu-
nity under Article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity
from jurisdiction under Article 37 shall preclude him from invoking immunity from
jurisdiction in respect of any counter-​claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings
shall not be held to imply waiver of immunity in respect of the execution of the judg-
ment, for which a separate waiver shall be necessary.

Article 33
1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with
respect to services rendered for the sending State be exempt from social security provi-
sions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this Article shall also apply to private
servants who are in the sole employ of a diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which may be in force in the
sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in para-
graph 2 of this Article does not apply shall observe the obligations which the social
security provisions of the receiving State impose upon employers.
 401

Vienna Convention on Diplomatic Relations (1961) 401

4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude
voluntary participation in the social security system of the receiving State provided that
such participation is permitted by that State.
5. The provisions of this Article shall not affect bilateral or multilateral agreements con-
cerning social security concluded previously and shall not prevent the conclusion of
such agreements in the future.

Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national,
regional or municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or
services;
(b) dues and taxes on private immovable property situated in the territory of the receiv-
ing State, unless he holds it on behalf of the sending State for the purposes of the
mission;
(c) estate, succession, or inheritance duties levied by the receiving State, subject to the
provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the receiving State and capital
taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f ) registration, court or record fees, mortgage dues and stamp duty, with respect to
immovable property, subject to the provisions of Article 23.

Article 35
The receiving State shall exempt diplomatic agents from all personal services, from all pub-
lic service of any kind whatsoever, and from military obligations such as those connected
with requisitioning, military contributions, and billeting.

Article 36
1. The receiving State shall, in accordance with such laws and regulations as it may adopt,
permit entry of and grant exemption from all customs duties, taxes, and related charges
other than charges for storage, cartage and similar services, on:
(a) articles for the official use of the mission;
(b) articles for the personal use of a diplomatic agent or members of his family forming
part of his household, including articles intended for his establishment.
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless
there are serious grounds for presuming that it contains articles not covered by the
exemptions mentioned in paragraph 1 of this Article, or articles the import or export of
which is prohibited by the law or controlled by the quarantine regulations of the receiv-
ing State. Such inspection shall be conducted only in the presence of the diplomatic
agent or of his authorized representative.
402

402 Vienna Convention on Diplomatic Relations (1961)

Article 37
1. The members of the family of a diplomatic agent forming part of his household shall, if
they are not nationals of the receiving State, enjoy the privileges and immunities speci-
fied in Articles 29 to 36.
2. Members of the administrative and technical staff of the mission, together with mem-
bers of their families forming part of their respective households, shall, if they are not
nationals of or permanently resident in the receiving State, enjoy the 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. They shall also
enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported
at the time of first installation.
3. Members of the service staff of the mission who are not nationals of or permanently
resident in the receiving State shall enjoy immunity in respect of acts performed in the
course of their duties, exemption from dues and taxes on the emoluments they receive
by reason of their employment and the exemption contained in Article 33.
4. Private servants of members of the mission shall, if they are not nationals of or perman-
ently resident in the receiving State, be exempt from dues and taxes on the emoluments
they receive by reason of their employment. In other respects, they may enjoy privileges
and immunities only to the extent admitted by the receiving State. However, the receiv-
ing State must exercise its jurisdiction over those persons in such a manner as not to
interfere unduly with the performance of the functions of the mission.

Article 38
1. Except insofar as additional privileges and immunities may be granted by the receiving
State, a diplomatic agent who is a national of or permanently resident in that State
shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts
performed in the exercise of his functions.
2. Other members of the staff of the mission and private servants 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. However, the receiving State must exercise
its jurisdiction over those persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.

Article 39
1. 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 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.
2. When the functions of a person enjoying privileges and immunities have come to an
end, such privileges and immunities shall normally cease at the moment when he leaves
the country, or on expiry of a reasonable period in which to do so, but shall subsist until
that time, even in case of armed conflict. However, with respect to acts performed by
 403

Vienna Convention on Diplomatic Relations (1961) 403

such a person in the exercise of his functions as a member of the mission, immunity
shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall con-
tinue to enjoy the privileges and immunities to which they are entitled until the expiry
of a reasonable period in which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently
resident in the receiving State or a member of his family forming part of his household,
the receiving State shall permit the withdrawal of the movable property of the deceased,
with the exception of any property acquired in the country the export of which was
prohibited at the time of his death. Estate, succession and inheritance duties shall not
be levied on movable property the presence of which in the receiving State was due
solely to the presence there of the deceased as a member of the mission or as a member
of the family of a member of the mission.

Article 40
1. If a diplomatic agent passes through or is in the territory of a third State, which has
granted him a passport visa if such visa was necessary, while proceeding to take up or
to return to his post, or when returning to his own country, the third State shall accord
him inviolability and such other immunities as may be required to ensure his transit or
return. The same shall apply in the case of any members of his family enjoying privileges
or immunities who are accompanying the diplomatic agent, or travelling separately to
join him or to return to their country.
2. In circumstances similar to those specified in paragraph 1 of this Article, third States
shall not hinder the passage of members of the administrative and technical or service
staff of a mission, and of members of their families, through their territories.
3. Third States shall accord to official correspondence and other official communications
in transit, including messages in code or cipher, the same freedom and protection as
is accorded by the receiving State. They shall accord to diplomatic couriers, who have
been granted a passport visa if such visa was necessary, and diplomatic bags in transit
the same inviolability and protection as the receiving State is bound to accord.
4. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also
apply to the persons mentioned respectively in those paragraphs, and to official com-
munications and diplomatic bags, whose presence in the territory of the third State is
due to force majeure.

Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoy-
ing 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.
2. All official business with the receiving State entrusted to the mission by the sending
State shall be conducted with or through the Ministry for Foreign Affairs of the receiv-
ing State or such other ministry as may be agreed.
3. 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
40

404 Vienna Convention on Diplomatic Relations (1961)

general international law or by any special agreements in force between the sending and
the receiving State.

Article 42
A diplomatic agent shall not in the receiving State practise for personal profit any profes-
sional or commercial activity.

Article 43
The function of a diplomatic agent comes to an end, inter alia:
(a) on notification by the sending State to the receiving State that the function of the dip-
lomatic agent has come to an end;
(b) on notification by the receiving State to the sending State that, in accordance with paragraph
2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.

Article 44
The receiving State must, even in case of armed conflict, grant facilities in order to enable
persons enjoying privileges and immunities, other than nationals of the receiving State,
and members of the families of such persons irrespective of their nationality, 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.

Article 45
If diplomatic relations are broken off between two States, or if a mission is permanently or
temporarily recalled:
(a) the receiving State must, even in case of armed conflict, respect and protect the premises
of the mission, together with its property and archives;
(b) the sending State may entrust the custody of the premises of the mission, together with
its property and archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those of its nationals to
a third State acceptable to the receiving State.

Article 46
A sending State may with the prior consent of a receiving State, and at the request of a third
State not represented in the receiving State, undertake the temporary protection of the
interests of the third State and of its nationals.
 405

Vienna Convention on Diplomatic Relations (1961) 405

Article 47
1. In the application of the provisions of the present Convention, the receiving State shall
not discriminate as between States.
2. However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the present Convention
restrictively because of a restrictive application of that provision to its mission in the
sending State;
(b) where by custom or agreement States extend to each other more favourable treat-
ment than is required by the provisions of the present Convention.

Article 48
The present Convention shall be open for signature by all States Members of the United
Nations or of any of the specialized agencies or Parties to the Statute of the International
Court of Justice, and by any other State invited by the General Assembly of the United
Nations to become a Party to the Convention, as follows: until 31 October 1961 at the
Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at
the United Nations Headquarters in New York.

Article 49
The present Convention is subject to ratification. The instruments of ratification shall be
deposited with the Secretary-​General of the United Nations.

Article 50
The present Convention shall remain open for accession by any State belonging to any of
the four categories mentioned in Article 48. The instruments of accession shall be deposited
with the Secretary-​General of the United Nations.

Article 51
1. The present Convention shall enter into force on the thirtieth day following the date of
deposit of the twenty-​second instrument of ratification or accession with the Secretary-​
General of the United Nations.
2. For each State ratifying or acceding to the Convention after the deposit of the twenty-​
second instrument of ratification or accession, the Convention shall enter into force
on the thirtieth day after deposit by such State of its instrument of ratification or
accession.
406

406 Vienna Convention on Diplomatic Relations (1961)

Article 52
The Secretary-​General of the United Nations shall inform all States belonging to any of the
four categories mentioned in Article 48:
(a) of signatures to the present Convention and of the deposit of instruments of ratification
or accession, in accordance with Articles 48, 49 and 50;
(b) of the date on which the present Convention will enter into force, in accordance with
Article 51.

Article 53
The original of the present Convention, of which the Chinese, English, French, Russian,
and Spanish texts are equally authentic, shall be deposited with the Secretary-​General of the
United Nations, who shall send certified copies thereof to all States belonging to any of the
four categories mentioned in Article 48.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Convention.
DONE at Vienna, this eighteenth day of April one thousand nine hundred and sixty-​one.
╇407

Index
abuse China
of law╇ 232–╉5 activism╇198
prevention of╇ 138–╉42 defectors in embassies╇ 197
access to the€courts position╇197
right of╇ 313–╉16 codification of diplomatic privileges
administrative measures╇ 25–╉7 and immunities╇ 54–╉71
Afghanistan╇ 196–╉7 see also International Law
agents, definition of╇153n Commission€(ILC)
aggression, definition of╇161n Cold War╇ 44–╉6
Albania see also Vienna Conference€(1961)
embassies in Tirana (1989)╇ 194 Colombia
Ambassadors╇ 328–╉9 ambassador’s residence in Caracas╇ 183
suite╇3n Peruvian Embassy in Lima╇ 181–╉2
ambiguous practice╇ 180–╉4 commercial activities
American Convention on Human Rights definition╇ 114–╉16, 257n, 258
(ACHR)╇ 88n, 90n, 202, 283n, 284n obligation to abstain from╇ 256–╉8
archives╇ 207–╉10 Common Foreign and Security Policy
definitions╇ 208–╉9, 211, 215 (CFSP)╇ 30, 325n, 327, 331
armed attack, definition of╇ 84, 92, 161 communications╇ 175–╉6
‘articles for official use’╇214 communism╇ 8n, 15, 21, 45, 48, 189–╉90,
Asia╇ 196–╉8 193–╉4, 197, 203
Afghanistan╇ 196–╉7 compliance mechanisms╇270
Chen Guangcheng╇ 198 consular assistance╇ 329–╉31
Chinese activism╇ 198 Convention on Special Missions (CSM)╇8,
Chinese position╇ 197 36n, 365–╉7, 372, 374
nineteenth century╇ 196 correspondence, definitions€of╇208
North Korean defectors╇ 197 see also diplomatic correspondence
Persian Shah╇ 196 criminal activities
Soviet soldiers╇ 196–╉7 inside the diplomatic mission╇ 155–╉7
Assange, Julian╇ 4, 16, 17-╉8, 195–╉6, 202, customary international law╇371
368, 371-╉2 customary law, principle of╇ 111, 163, 242
see also WikiLeaks cyber warfare╇208
Association of South East Asian Nations cybercrime╇264
(ASEAN)╇298, 335 cyber-╉espionage╇205
asylum cyberspace╇271
see diplomatic€asylum cyberterrorism╇264
‘at any time’╇208 see also terrorism
Czechoslovakia
bilateralism╇32 invasion (1968)╇ 192
Brazilian Embassy of Tegucigalpa╇ 183–╉4
breach of diplomatic obligations╇ 265–╉70 de la Torre, Haya╇ 181–╉2
British Embassy╇196 de lege ferenda╇ 384–╉8
British Indian Ocean Territory de lege lata╇ 382–╉4
(BIOT)╇220, 226 deportation
Bulgaria Hungarian Jews (1944)╇ 187–╉9
Hungarian Embassy of Sofia╇ 193 deterrent measures╇ 27–╉31
devolved regions╇ 343–╉6
Café diplomacy╇ 48–╉9 see also Scotland;€Wales
see also Vienna Conference€(1961) diplomatic asylum╇ 4, 10, 16-╉8, 51-╉2, 60-╉1,
Carmona, Pedro╇183 64, 66, 69, 179-╉203, 261, 368, 371-╉2
certainty of law, principle€of╇105 African examples of╇ 198–╉9
Chen Guangcheng╇198 The Durban Six╇ 198
408

408 Index
diplomatic asylum (cont.) remedies  227–​9
Meriam Ibrahim, US Embassy in States  225–​7
Sudan  198–​9 WikiLeaks  217–​19
Asian examples of  196–​8 protection in the digital age  204–​30
Czechoslovakia (1968)  192 diplomatic duties  247–​71
definition of  180, 191, 199, 273n, 384 breach of diplomatic obligations  265–​70
European examples of  184-​96 alternative compliance mechanisms  270
historical and contemporary avenues for redress  266–​8
examples  180–​9 diplomatic system as a self-​enforcing
Hungarian examples of  185-​92 system 269
non-​customary practice of  179–​203 sending States and their diplomats  266
lessons from case studies  199–​203 context  247–​8, 271
Prague Spring (1968)  192 obligations of diplomats  248–​58
South America  180–​4 abstinence from commercial
Soviet dissidents in Moscow  193 activities  256–​8
Spanish Civil War (1936–​1939)  184–​5 abstinence from professional
Vienna Convention, silence of  179–​80 activities  256–​8
see also Assange, Julian individual obligations  249–​58
see also Chen Guangcheng mission conduct of official
see also de la Torre, Haya business  258–​61
see also inviolability of mission premises non-​interference in the internal affairs of
see also Mindszenty, József the receiving State  252–​6
see also Nagy, Imre see also diplomatic interference
see also Zelaya Rosales, José Manuel respect for laws and regulations of the
diplomatic bags receiving State  249–​52
archives and documents  212–​15 use of the premises of the mission  261–​5
definitions  214–​15, 233 diplomatic functions, definition of  261–​2
scanning of  235–​7 diplomatic immunity
virtual concept of  214–​15 employment claims  121–​3
diplomatic cables international norms  119–​21
as evidence in legal proceedings  217–​29 principles 37, 307
international courts and tribunals  224–​7 diplomatic interference  6, 11, 19-​21, 24-​5, 51,
leaked diplomatic documentation  219–​27 89, 252-​56, 261-​62, 264, 268, 272-​94,
national courts  219–​24 375-​77, 383
remedies  227–​9 concept of  272–​4
State obligations  219–​27 context  272–​4, 291–​4
term/​concept  204 competing norms and  274–​84
WikiLeaks  217–​19 diplomatic functions  274–​7
see also diplomatic correspondence duty of non-​interference  272–​94
diplomatic correspondence human rights in the receiving State  277–​84
archives and correspondence  206–​17 diplomatic functions  277–​9
adequacy of the VCDR in digital norms of international law  279–​84
age  215–​17 internal affairs of the receiving State  252–​6
diplomatic archives and permissive and restrictive norms  284–​91
documents  207–​10 diplomatic inviolability principle 25
diplomatic bag  212–​15 see also emergency situations
historical background  206–​7 see also inviolability of mission premises
official correspondence of the diplomatic see also personal diplomatic inviolability
mission  210–​12 diplomatic law
protection of diplomatic contemporary perspectives  3–​14, 365–​92
archives, documents and diplomatic missions
correspondence  207–​15 Hungarian Jews (1944)  187–​9
context  204–​6, 229–​30 term/​concept  329
leaked diplomatic cables as evidence in diplomatic principles  24, 244, 261
legal proceedings  217–​29 diplomatic, term/​concept  301, 303
international courts and tribunals  224–​7 diplomatic shelter
national courts  219–​24 see diplomatic asylum
non-​State actors  224–​5 discretionary agreements  102–​3
obligations of States under the distress  166–​9
VCDR  219–​27 inviolability of mission premises  166–​7
 409

Index 409
threatening individual interests  92–​5 Ambassadors vs Heads of
see also necessity Delegation  328–​9
documentation, diplomatic  207–​10 High Representative of the Union
document protection, concept of  208 for Foreign Affairs and Security
see also archives Policy 331
drugs  52, 93, 212, 213, 233–​4, 237, 250 personnel documents and consular
Durban Six, The 198 assistance  329–​31
see also diplomatic asylum legal framework for external action of the
duties see diplomatic duties EU  322–​8
competence divisions  326–​8
Ecuador Council decision to establish the European
London Embassy of  195–​6 External Action Service  325–​6
elitism (State) 338 EU diplomacy past and present  323–​5
emergency situations recent developments  335–​6
controversy  152–​7 exception, term 151
personal diplomatic inviolability  75–​97 ‘exercise of common humanity’ 111
self-​defence  162–​5 exploitation
employment prevention of  138–​42
application of diplomatic immunity as an exterritoriality  5-​6, 36-​7, 138, 255, 298n, 301
absolute bar to claims  121–​3 extraterritoriality, see exterritoriality
changes to the VCDR  128–​9
context  113–​14, 129–​31 family of the diplomatic agent  10, 98–​112,
flexibilities within the VCDR and 257, 263, 370-​1
employment claims  114–​19 context/​scope  98–​9, 110–​12
interaction of diplomatic immunity and other definitions of  10, 12, 101, 104–​6, 108, 100,
international norms  119–​21 110–​11, 370, 373, 382
inviolability of diplomatic agents  113–​31 discretionary agreements ‘on condition
potential challenges to State immunity of reciprocity’  102–​3
(ratione materiae)  123–​8 disquiet with immunities and suggested
enforcement measures see personal diplomatic solutions 110
inviolability domestic legislation  104–​8
enlightened self-​interest, principle of 355 polygamy, various forms of  108
equality between States, concept of 120 questions of procedure  105
erga omnes  279–​85, 372, 376 same-​sex partners  107
espionage acts 265 substantive practice of States  105–​7
essential interest, definition of  86–​7, 94, 96, factors guiding composition and nature of
167–​8, 377 the mission  103–​8
establishment agreements  332–​4 gainful occupation  109
European Convention on Human Rights immunities and privileges for members  99–​101
(ECHR)  88n, 90, 121n, 122–​5, 202, ‘members of the family of a diplomatic agent
283n, 284n, 300, 309, 313–​16 forming part of the household’  101–​3
European Court of Human Rights nationality, questions of  108–​9
(ECtHR)  88, 125, 224, 255n, 263n, preparatory works at the ILC and at the
309, 313–​17 Conference  99–​101
European External Action Service (EEAS) 30, principles of domestic family law  104
32, 324–​9, 331, 333–​40, 365 spirit of the Vienna Convention  103–​4
European Free Trade Association Fletcher, Yvonne  19, 25n, 27, 29, 39, 176-​7
(EFTA) 288n force majeure  78–​9, 149, 152–​9, 162, 166,
European Space Agency (ESA) 313, 168, 170, 173
316, 367n forced labour  114, 126, 127, 129, 130
European Union (EU)  319–​40 Foreign & Commonwealth Office (FCO) 
context  319–​20, 336–​40 17–​19, 37, 39, 40, 113, 345–​6,
EU and the VCDR  320–​2 348–​50, 353, 360–​1, 380
external challenges  331–​4 Foreign Relations of the United States
establishment agreements  332–​4 (FRUS)  190–​1, 199n
position under international law  332 freedom from interference 222
working with EU Member see also diplomatic interference
States 334 freedom from slavery  90, 130, 283
internal challenges  328–​31 see also slavery
410

410 Index
freedom from torture or inhuman and Hungary
degrading treatment or punishment 90 Hungarian Embassy in Sofia  193
see also torture Hungarian Jews during the Holocaust  187–​9
freedom of appointment 135 Hungarian Nazi leader Szálasi  186
freedom of assembly 283 Mindszenty at the US Embassy in
freedom of association 283 Budapest  190–​2
freedom of communication  59, 216, 229, 367 Nagy and the Yugoslav Embassy in
freedom of communication and inviolability Budapest  189–​90
of the diplomatic bag 229 refuge for the Horthy family at the
see also diplomatic bag nunciature 186
freedom of communication of diplomatic refuge for Kállay at residence of the
missions, principle of 51 Turkish envoy  185–​6
freedom of expression  177, 216, 219, 283, 290
freedom of information 177, 355 Ibrahim, Meriam  198–​9
freedom of movement and travel  24, 59, 64, immunities
70, 229, 250, 269, 276, 305, 306n, 367 of diplomatic premises, concept of  373
freedom of speech 294 disquiet with  110
functional necessity  6, 120, 121, 127, 128–​30, human rights and  33–​6
143, 239, 297–​9, 303 of international organizations, concept
functionalism 299 of  300–​3
imperialism 45
gainful occupation 109 Inter-​American Commission on Human
General Agreement on Tariffs and Trade Rights (IACHR)  90, 180n, 216n
(GATT) 288n Inter-​American Convention on Human
general principles of law 111 Rights 202
genocide  67, 254, 279, 280n, 284n, 299, Inter-​American Court of Human Rights 211
314, 349 interference
Germany see diplomatic interference
East German nationals (1989)  194 internal affairs
legation (Autumn 1944)  186 of receiving States  252–​6
global citizenship 357 International Center for the Settlement of
globalized living  36–​9 Investment Disputes (ICSID) 226
good faith, principle of 111 International Civil Aviation Organization
(ICAO) 311
harassment  16, 20, 193, 243, 315, 316 International Committee of the Red Cross
harmonization principles  79n, 255, 286, (ICRC)  188, 193, 194, 280n, 298n
292, 392 international courtesy 111
Heads of Delegation  328–​9 international courts and tribunals  224–​7
High Representative of the Union for Foreign non-​State actors  224–​5
Affairs and Security Policy 331 States  225–​7
Holocaust  187–​9 International Covenant on Civil and Political
Homosexuality Rights (ICCPR)  88n, 175n, 202, 205n,
see LGBT issues 216n, 281n, 377n
see same sex partners International Covenant on Economic,
Honduras Social and Cultural Rights
Brazilian Embassy of Tegucigalpa  183–​4 (ICESCR) 281n, 377n
President of  183–​4 International Criminal Tribunal for Rwanda
Horthy family 186 (ICTR) 14n
household, definitions of  10, 99, 110 International Criminal Tribunal for the Former
human life, protection of  149–​71 Yugoslavia (ICTY) 14n
human rights International Labour Organization
concept of 144 (ILO) 137, 298n
diplomatic involvement  277–​84 International Law Commission (ILC)
diplomatic functions  277–​9 diplomatic immunity  304–​5
norms of international law  279–​84 diplomatic privileges and immunities
immunities and  33–​6 (1949–​1958)  54–​71
human trafficking  121–​2, 140–​2, 213, 316 diplomatic intercourse and
humanism 188, 189 immunities  58–​63
humanitarian assistance  187–​9 institutionalized codification process  56–​8
 41

Index 411
ninth session (1957)  63–​5 Mindszenty, József  190–​2
overview  69–​71 Moldova
tenth session (1958)  65–​9 Romanian Embassy in Chişinău  195
International Maritime Organisation murder
(IMO) 31, 37 Hungarian Jews (1944)  187–​9
International Monetary Fund
(IMF)  297–​8, 313 Nagy, Imre  189–​90
international organizations (IOs)  297–​318 nation State principle  32, 321, 328, 339–​40,
judicial consideration of the intersection 342, 353, 354, 360, 361
of immunities  309–​16 national courts  219–​24
officials  310–​13 nationality principle  59, 61n, 102–​4, 133,
right of access to the courts  313–​16 135, 137, 329, 385
overview  317–​18 NATO (North Atlantic Treaty
role of diplomatic immunity  300–​8 Organization)  89, 136, 195, 265n
International Law Commission  304–​5 Nazism  185–​9
League of Nations  300–​4 Hungarian 186
officials  306–​8 see also Holocaust
State representatives to IOs  305–​6 necessity  166–​9
United Nations  300–​4 inviolability of mission premises  167–​9
intersection of immunities see international threatening state interests  85–​8
organizations (IOs) see also distress
inviolability of mission premises  172–​8 NGOs (non-​governmental organizations) 141,
contemporary developments  172–​8 145, 252–​4, 264, 343
context  172–​5, 177–​8 non-​discrimination principle 68, 269
definition of  222, 301 non-​interference, principle of
principle of  64, 66, 78, 87, 168, 174, see diplomatic interference
177–​8, 237 non-​judicial practice 111
privacy and communications  175–​6 non-​refoulement principle 202
protection of public safety and human Noriega, Manuel 183
life  149–​71 normative hierarchy  34, 119, 121–​2, 125
Yvonne Fletcher case  176–​7 North Korea 197
see also public safety and human life nullum crimen sine lege principle 90
nunciature
judicial practice  105, 107, 111 Panama City  183
jus cogens  34–​5, 38, 89, 114, 119–​22, 125–​31 refuge for Horthy family  186

Kállay, Miklós  185–​6 obligation to send diplomats 266

obligations of diplomats see diplomatic duties
laissez-​passers  329–​30 obligations of States
Latin American delegations  44–​6 under the VCDR  219–​27
see also Vienna Conference (1961) official business  258–​61
League of Nations  300–​4 see also diplomatic duties
leaked diplomatic documentation  219–​27 official correspondence  210–​12
see also diplomatic cables definition of 210
legal duties of diplomats see also correspondence
see diplomatic duties ‘official purposes’ 251
lex posterior principle 34, 285n ‘only means’ 168
lex specialis principle 34, 285n organization chart 259
LGBT (lesbian, gay, bisexual and transgender) Organization for Security and Cooperation
issues 293n in Europe (OSCE) 140
life, right to see public safety and human life; Organization of American States
right to life (OAS) 181, 298n
local staff  133–​6
see also private domestic staff Panama City
nunciature 183
Marine Protected Area (MPA)  220, 222, paradiplomacy  342–​3
226–​7, 380 see also Scotland; sub-​State
Memoranda of Understanding (MoU) 335n, diplomacy; Wales
344, 350 people, definition of 283n
412

412 Index
permissive norms  284–​91 protection of  149–​71
Persia see also public safety and human life
Wives of the Shah of  196 public safety and human life
persona non grata  18, 25–​8, 32, 35, 37–​8, 79, alternative measures  169–​70
80, 233, 253, 265, 268, 367, 391 nature of the dilemma  150–​8
personal diplomatic inviolability  75–​97 criminal activities inside the diplomatic
concept of  77-​8 mission  155–​7
context  75–​7, 95–​7 dilemma faced by the receiving
emergencies and responses  77–​95 State  157–​8
emergency situations  75–​97 emergency situations in which controversy
enforcement measures  77–​81 arises  152–​7
State jurisdiction as a basis for enforcement force majeure  152–​5
measures  81–​3 inviolability of mission premises  150–​1
threatening individual interests  88–​95 overview  170–​1
distress  92–​5 possible justifications  159–​69
right to life  88–​91 distress and necessity  166–​9
self-​defence  91–​2 right of self-​defence  159–​65
threatening State interests  81–​8 protection of  149–​71
necessity  85–​8 punitive measures  27–​31
self-​defence  83–​5
personal profit, concept of  115, 256, 258, 264 racial discrimination  279, 283, 315, 316
personnel documents  329–​31 ratio legis 111
Peru ratione materiae immunity  123–​8
Colombian Embassy in Lima  181–​2 receiving States
Pinochet, Augusto internal affairs of  252–​6
coup d’état (1973)  182 laws and regulations of  249–​52
polygamy 108 reciprocity principle  9, 19, 117, 232, 235–​8,
Prague Spring (1968) 192 248, 269, 307, 322, 333
see also diplomatic asylum redress  266–​8
principles of international law 168, 232 refugees  17, 194, 197–​202, 264, 278, 311
privacy  175–​6 regional custom  180–​4
private domestic staff (PDS)  132–​45 regional treaties  180–​4
court cases  142–​5 remedies  227–​9
defining the group  132–​6 representative character theory  6, 119–​20,
local staff  133–​6 129–​30, 298n, 374
PDS/​private servant  133 restrictive norms  284–​91
service staff  133 right to a fair trial  119, 122, 124–​5, 128,
exploitation and abuse, prevention 130, 223
of  138–​42 right to access a court 122
social insurance issue  137–​8 right to asylum 199
VCDR framework for PDS  136–​7 right to block accreditation 35n
private servants 133 right to claim fulfilment of erga omnes
see also private domestic staff obligations 280
privileges and immunities  98–​112 right to coercive action 80, 93
see also diplomatic immunity right to confidentiality of
see also family of the diplomatic agent communications 223
procedural questions 105 right to decide one’s own political
professional activities development 282
obligation to abstain from  256–​8 right to declare a diplomatic agent persona non
professionalism 259 grata 391
proportionality principle  85, 110, 122-​5, 160, right to effective judicial protection 223
286–​92, 313, 315-​6, 377 right to enter territory of the receiving State 104
human rights and  216 right to fair and adequate compensation 126
interference and  286-​92 right to freedom from forced labour 130
self-​defence and  85, 160, 163 right to freedom from servitude 130
protection principle 110 right to freedom from slavery 130
public diplomacy, concept of  32–​3, 350 right to grant asylum in mission premises 372
public safety right to investigate instances of
definition of 152 interference 268
 413

Index 413
right to life  90–​3, 283 Soviet Union
of animals  89n dissidents in Moscow  193
threatening individual interests  88–​91 soldiers in Afghanistan  196–​7
right to open the bag 235 Spanish Civil War (1936–​1939)
see also diplomatic bag diplomatic asylum  184–​5
right to personal diplomatic inviolability 9 Special Court for Sierra Leone
right to privacy of communications 175 (SCSL) 224
right to protection 120 spouses, definition of 106n
right to reject entry 235 State immunity
right to respect the privacy of international challenges to  123–​8
organizations 308n concept of 119
right to seize persons in self-​defence 84 sub-​State diplomacy  341–​62
right to self-​defence  84–​5, 285n, 375, 389 see also Scotland; Wales
right to self-​determination  11, 282, 290, substantive practice of States  105–​7
294, 376 Sudan  198–​9
right to verification of the bag 213 Szálasi, Ferenc 186
see also diplomatic bag
right to vote 283 terrorism  25n, 76n, 177, 231, 233n, 234n,
Romania 264, 380
Bulgarian and Hungarian citizens  193 theory of diplomacy 21, 341
embassy in Moldova  195 theory of diplomatic immunities 69
theory of diplomatic obligations 249
same-​sex partners 107 theory of extraterritoriality see exterritoriality
Scotland theory of functional necessity see functional
overseas offices  351–​60 necessity
Scottish Development International theory of personal representation 238
(SDI)  351–​2, 358, 360n see also representative character theory
SEATO (Southeast Asia Treaty theory of the absolute nature of
Organization) 89n inviolability 79
self-​contained regime  23–​40 theory of the law of international
success of  24–​32 organizations 299, 301
self-​defence third world perspectives  231–​44
concept/​definition of  160, 165 analysis and solution  237–​44
right of  159–​65 law and its abuse  232–​5
contemporary international law  159–​62 overview 244
emergency situations  162–​5 scanning of diplomatic bags  235–​7
threats to individual interests  91–​2 threat or use of force 161n, 282n
threats to State interests  83–​5 torture  38–​9, 90, 125–​6, 279, 283,
self-​enforcing diplomatic system 269 284n, 376
service staff 133 Treaty on European Union (TEU) 323
see also private domestic staff Turkish envoy, residence of  185–​6
shelter see diplomatic asylum
Skype  377–​82 United Kingdom
slavery  90, 114, 121, 127, 129, 130, 279, 283 sub-​State diplomacy  341–​62
smartphones  377–​82 see also Scotland; Wales
social insurance  137–​8 United Nations  300–​4
social security  98, 134–​9, 257 concept of 58
South America United Nations Charter  40, 52, 57, 60, 83–​5,
Carmona in the Colombian ambassador’s 96n, 160–​5, 239, 298–​9, 302–​3, 320–​1,
residence of Caracas  183 324, 387
de la Torre’s refuge of the Colombian United Nations Convention on the Law of the
Embassy in Lima  181–​2 Sea (UNCLOS)  226–​7
Noriega at the nunciature in Panama United Nations Educational, Scientific and
City 183 Cultural Organization (UNESCO) 61,
refuge during Pinochet’s coup d’état 182 310n, 314n
regional treaties and custom  180–​4 United Nations General Assembly
treaty law  180–​1 (UNGA)  10, 43–​4, 51, 58, 65–​9, 99–​
Zelaya Rosales in the Brazilian Embassy 100, 180, 207, 213, 243–​4, 302, 305–​6,
of Tegucigalpa  183–​4 308, 317, 323, 367, 369, 372, 391
41

414 Index
United Nations High Commissioner for context  23–​4, 39–​40
Refugees (UNHCR) 311 importance of  23–​40
United Nations Security Council (UNSC) 52, overview  31–​2
160, 327 punitive/​deterrent measures  27–​31
United States sub-​State diplomacy  341–​62
Embassy in Budapest  190-​2 context  341–​2, 360–​2
Embassy in Kabul  196-​7 paradiplomacy and diplomatic law  342–​3
Embassy in Sudan  198-​9 Scotland’s overseas offices  351–​60
Universal Declaration of Human Rights UK’s devolved regions  343–​6
(UDHR) 121n, 175n Wales’ Overseas Offices  346–​51
Uruguay  43–​4 success and challenges  365–​92
see also Vienna Conference (1961) blind spots of the Convention  369–​73
use of premises  261–​5 challenges  369–​82
see also diplomatic duties digital technologies  377–​82
future challenges  382–​8
Venezuela norms of international law  373–​7
Colombian Ambassador’s residence, overview  388–​92
Caracas 183 solutions de lege ferenda  384–​8
Vienna Conference (1961) solutions de lege lata  382–​4
views of a delegate to  43–​53 successes  365–​8
Café diplomacy  48–​9 Vienna Convention on the Law of Treaties
Cold War  44–​6 (VCLT)  89–​90, 111n, 217, 286
Latin American delegations  44–​6 Vienna Convention on the Representation
leadership of the conference  46–​8 of States in their Relations with
personalities  49–​50 International Organizations of a
reflections  52–​3 Universal Character (CRSIO)  8–​10, 60n,
topics  50–​2 305, 366–​7
from Uruguay to Vienna  43–​4 Vienna Convention principles  334, 335, 337
Vienna Convention on Consular Relations voting rights see right to vote
(VCCR)  8, 116, 135, 143, 155, 208, 213,
228–​9, 235, 242, 251n, 260, 330, 339, Wales
366–​7, 372, 374–​5 overseas offices  346–​51
Vienna Convention on Diplomatic Warsaw Pact 192
Relations (VCDR) WikiLeaks  217–​19, 377–​82
employment claims  114–​19, 128–​9 see also Assange, Julian
former diplomat’s reflections on  15–​22 World Health Organization (WHO) 
future in a changing world  32–​9 310, 312
expanding jurisdictions and globalized World Intellectual Property Organization
living  36–​9 (WIPO) 387
immunities and human rights, balancing World Trade Organization (WTO) 144
of  33–​6 Dispute Settlement Body (DSB)  243
prioritization of VCDR  33–​6
obligations of diplomats  248–​58 Yugoslavia
private domestic staff, framework for  136–​7 Embassy in Budapest  189–​90
self-​contained regime/​success of  24–​32
administrative measures  25–​7 Zelaya Rosales, José Manuel  183–​4