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Diplomatic Law - Commentary on the Vienna Convention on Diplomatic Relations, 4th Edition by Denza, Eileen (14th January 2016)

Offices away from the Seat of the Mission

From: Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th Edition)

Eileen Denza

Subject(s):
Diplomatic immunity — Diplomatic missions — Diplomatic relations — Privileges — Immunity from jurisdiction — Consent to jurisdiction

(p. 84) Offices away from the Seat of the Mission

Article 12

The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.

Background

No previously established rule of customary law required the sending State to base its diplomatic mission at the capital or seat of government of the receiving State. Nor was the sending State required by international law to seek permission in order to acquire offices in a part of the country other than that where the principal seat of the mission was established. The general practice was for missions to be established in the city or town which was the seat of government of the receiving State and to follow that government if it moved either permanently or to a summer residence. This was, however, a matter of convenience reflecting the need for the mission to conduct business with the government, and there were exceptions.

In China, for example, between 1927 and 1937 many of the diplomatic missions were permitted to remain in Peking although the Government had moved to Nanking. In Saudi Arabia the Foreign Office was in Jedda and missions were required to reside there rather than in Riyadh, the seat of government. In Israel most diplomatic missions remained in Tel Aviv because a move to Jerusalem would imply acceptance of Israel’s establishment there of its seat of government.1 The US Congress has sought to place pressure on the President to move the US Embassy to Jerusalem by passing a Jerusalem Embassy Act, but the Act permitted a waiver by the executive ‘to protect national security interests’ and such a move has never taken place.2

The Holy See, because of the very small size of the Vatican City State, is unable to accommodate the premises of all the missions accredited to it. Missions are therefore established in Rome, outside the territory of the receiving State. Under Article 12 of the Lateran Treaty Italy guarantees their privileges and immunities, rights of access and communication, even where the sending States do not have diplomatic relations with Italy, ‘and their residences can continue to remain in Italian territory’.3 The Holy See, however, (as already explained in the context of Article 2 above) will not accept co-location of a mission to itself with the diplomatic mission of the relevant State to Italy even where the sending State tries to justify such a move on grounds of security or (p. 85) economy. The UK, however, now makes some savings by locating its Embassy to the Holy See on the same site as its Embassy to Italy, though in a separate building.4

Negotiating history

There were both practical and political obstacles to formulating a rule which would require diplomatic missions to follow the seat of the government of the receiving State. The International Law Commission text therefore dealt solely with prohibiting the establishment of offices ‘in towns other than those in which the mission itself is established’. Discussion, however, made clear that the members of the Commission were concerned at the difficulty for the receiving State in ensuring privileges and immunities if missions were set up away from the seat of government, and also at preventing abuses. Mr Bartos, for example, commented that: ‘Ambassadors with little diplomatic business to transact in Yugoslavia had even been known to establish themselves in watering places, arguing that if they had been accredited to two countries, they might have had to operate from Rome or Vienna, so there could be no objection to their operating from a Yugoslav watering place.’ The Commission’s Commentary stated that the Article had been included ‘to forestall the awkward situation which would result for the receiving Government if mission premises were established in towns other than that which is the seat of the Government’.5

At the Vienna Conference Switzerland and Mexico proposed amendments to require missions to be established at the seat of government of the receiving State. Although the representative of Switzerland argued that such a provision would reflect a recognized principle of international law, the amendments met with general opposition and were withdrawn.6 The customary position was thus left unchanged on the question of establishing missions at the seat of government.

Article 12 was thus confined to requiring prior express consent of the receiving State before offices forming part of the mission can be set up in towns other than that of the seat of the mission. The addition, by UK amendment, of the words ‘forming part of the mission’ brought out clearly that the object was not to prevent a State from setting up, for example, an embassy library, information centre, or commercial office separate from the mission itself. Establishments of this kind would not be entitled to privileges or immunities and would need only those building or operating consents necessary under the general law of the receiving State. The objective was to ensure that premises which were entitled to privileges and immunities were adequately known to and subject to the control as well as the protection of the receiving State.

The United Kingdom also proposed an amendment to replace the word ‘towns’ in the International Law Commission’s draft by ‘localities’, on the basis that the word ‘towns’ had a restrictive connotation. This amendment was accepted, but in fact it introduces some ambiguity in that it could be argued to apply to offices in a different area of the same town or city, or to a summer residence outside but close to the capital city. It is, however, clear from the negotiating history, and appears to have been accepted in practice, that (p. 86) Article 11 does not apply to these situations. Mission premises in several buildings situated in different parts within or around a city may indeed give rise to questions which are considered under Article 1(i) of the Convention. They are not, however, subject to prior express consent of the receiving State under Article 12.7

Subsequent practice

Although neither customary international law nor Article 12 requires that diplomatic missions should be established at the seat of government of the receiving State, such a requirement is sometimes imposed by national law or by administrative decree. The Government of Switzerland, for example, have made it a condition for granting privileges and immunities that diplomatic missions should be based at Berne, the Federal capital. Their particular concern was that other States might wish to accredit their representative to the United Nations in Geneva to the Government of Switzerland, which would not accept such an arrangement.8 Also, The Netherlands require diplomatic missions to be based in The Hague, the centre of public administration, rather than in Amsterdam.

In 1972, when Brazil moved her capital from Rio de Janeiro to Brasilia, she imposed a time limit for diplomatic missions to move to the new capital. Despite the practical difficulties of incomplete buildings and high rents for temporary premises in Brasilia, it was made clear that missions which had not moved to Brasilia would be struck off the Diplomatic List and would lose their entitlement to privileges and immunities.9 But in other cases where a capital is moved, for example when the capital of Germany was moved to Berlin, diplomatic missions have been left to make their own decisions on the basis that political and practical considerations will in any event dictate a move to the new seat of government. The move of the German capital from Bonn to Berlin was completed in mid-1999, and a year later a new British Embassy building was formally opened by the Queen in Berlin.10 In 1991, when the capital of Nigeria was moved from Lagos to Abuja, no requirement was imposed on embassies to follow, and transfers were gradual. In 2005, the Government of Burma transferred its administrative capital from Rangoon to Nay Pyi Daw, a city then in the process of construction, and virtually no embassies have as yet followed.

The United States has since 1816 expected foreign missions to reside in Washington. The Secretary of State commented in 1828:

If the President has, in one or two instances, acquiesced in the residence of foreign ministers in a distant city of the Union, it has been because they have but little business to transact with this government, and because their residence there has given rise to no complaint of breach of privileges on the one hand or of personal injury to American citizens on the other.

The State Department also expected US envoys to maintain their normal post of duty at the seat of government of the receiving State, even in times of physical danger.11 In 1939 the Chief of Protocol of the State Department formally stated that ‘the only foreign (p. 87) diplomatic officers … permitted to reside and maintain offices in New York City will be the ranking commercial or financial officer’. Circular Notes confirming this policy were sent to all diplomatic missions in Washington in 1974, 1977, and 1978. The policy was considered and endorsed by the US Court of Appeals in the case of US v Kostadinov,12 discussed above under Article 11. In holding that Kostadinov, Assistant Commercial Counsellor in the Bulgarian Trade Office in New York, was not a member of the Bulgarian mission, the Court of Appeals relied mainly on Article 11 entitling the United States to limit the size of the Bulgarian mission. The same result could, however, have been based on application of Article 12. Since the United States could have refused permission for trade offices in New York to form part of diplomatic mission premises, it followed that they were entitled to grant permission limited to a single officer.

Footnotes:

1  UN Doc A/Conf. 20/14 p 109 (representative of Saudi Arabia); Lecaros (1984) p 93.

2  2003 AJIL 179.

3  Cardinale (1976) pp 216–17.

4  UKMIL, 2010 BYIL 641.

5  UN Docs A/CN 4/L 75 p 8; A/CN 4/114/Add. 1 p 14; A/CN 14/116 p 25 and Add. 1, Art 7 para 3; ILC Yearbook 1958 vol I p 113, vol II p 92.

6  UN Docs A/Conf. 20/C 1/L 56 (Mexico), L 107 (Switzerland); A/Conf. 20/14 pp 108–10.

7  UN Docs A/Conf. 20/C 1/L 53 paras 1 and 2; A/Conf. 20/14 pp 108–12.

8  1961 ASDI 127.

9  Do Nascimento e Silva (1973) p 51; 1973 RGDIP 793.

10  Richtsteig (1994) pp 36–7; The Times, 19 July 2000.

11  Moore (1905) vol IV para 645.

12  USCA 2nd Cir 1133, Judgment of 10 May 1984; 99 ILR 103.