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Inviolability of Residence and Property

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

Eileen Denza

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
14 January 2016
ISBN:
9780198703969

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Subject(s):
Diplomatic immunity — Diplomatic missions — Diplomatic relations — Right to liberty of movement

(p. 225) Inviolability of Residence and Property

Article 30

  1. 1.  The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

  2. 2.  His papers, correspondence and, except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.

The rule that the private residence and property of a diplomatic agent were inviolable was long established in customary international law. Article 30 has clarified a number of the uncertain points, and has extended the scope of this inviolability—perhaps beyond what is easily justifiable on grounds of functional necessity.

Private residences

Originally no distinction was made between the premises of the mission and the residence of the ambassador. Even when the growth in the size of missions sometimes led to physical separation between the office building—often known as the chancery—and the private residence of the ambassador, the term ‘l’hôtel de l’ambassadeur’ continued to be applied indiscriminately to both, and the same inviolability was accorded to both as a matter of customary law.1 This usage has been reflected in the Vienna Convention in that the definition of ‘premises of the mission’ in Article 1(i) includes the residence of the head of the mission. Inviolability was also accepted generally as applying to the separate residence of a subordinate diplomatic agent—who in the sixteenth and seventeenth centuries would almost always have lived with the ambassador as a member of his suite.2 Many States made specific rules in national legislation to confer inviolability on the residence of a diplomatic agent, and express provision was included in the Havana Convention regarding Diplomatic Officers.3

As to the nature of the property which might constitute a ‘private residence’, the International Law Commission made clear that it denoted a residence distinct from the premises of the mission (as defined in Article 1(i)). This could be a room in a hotel, an apartment, or a house. The term also included a residence owned or leased by the sending State and made available for diplomatic occupation, even though this was in one sense not ‘private’. The Commission said in its Commentary that: ‘Because this inviolability arises from that attaching to the person of the diplomatic agent, the expression “the private (p. 226) residence of a diplomatic agent” necessarily includes even a temporary residence of the diplomatic agent.’4

While this approach would accord inviolability to a second residence, such as a holiday cottage or a hotel room away from the capital, if the diplomat was actually living in it, it might also suggest that the principal private residence lost its inviolability if the diplomat was temporarily absent. This problem arose in the United Kingdom in the case of Agbor v Metropolitan Police Commissioner.5 A Nigerian diplomat moved out of his flat and a Biafran family took advantage of his absence to move in. The Nigerian High Commission claimed that the diplomat had moved out temporarily while the premises were redecorated and that the flat remained inviolable as the ‘residence of a diplomatic agent’. They requested police assistance to evict the intruders and after a delay of some weeks for consultation between Foreign and Commonwealth Office and Home Office eviction was carried out. On challenge to the legality of the eviction, which had been carried out on the instructions of the executive without any court order, the Court of Appeal found that the diplomatic agent had left permanently, so that the flat was no longer ‘the residence of a diplomatic agent’ and the action was not justified. The court therefore did not have to determine whether inviolability would have continued if the absence had been only temporary. It would, however, seem to be reasonable that the inviolability of a principal residence should subsist during a temporary absence—particularly if the diplomat’s property remains in the premises. A temporary residence by contrast would be entitled to inviolability only while the diplomat was actually resident there. If the temporary residence was the ‘property’ of the diplomatic agent it would, however, also be entitled to the somewhat more limited degree of inviolability given under Article 30.2.

Lord Denning MR in giving judgment in the Agbor case also expressed doubt as to whether the Diplomatic Privileges Act 1964 gave the executive any right to evict a person in possession who claimed as of right to be in occupation of diplomatic premises. ‘It enables the police to defend the premises against intruders. But not to turn out people who are in possession and claim as of right to be there.’ As explained above in the context of Article 22, it was believed to be unsatisfactory that the executive should be unable to act without first seeking a court order to recover possession of mission premises or a diplomatic residence, and section 9 of the Criminal Law Act 19776 made it a criminal offence knowingly to trespass on ‘any premises which are the private residence of a diplomatic agent’ and gave the police powers to arrest offenders.

A further question which could arise is whether a private residence should be regarded as inviolable for a ‘reasonable period’ after the diplomat has ceased to live there. In the context of Article 22 above it has been suggested that a ‘reasonable period’ should be given by the receiving State after premises cease to be ‘used for the purposes of the mission’. This does not, however, appear to be necessary or appropriate under Article 30. If a diplomat has moved out permanently from his principal residence—which will usually be when he is no longer living there and his property has been moved out—there seems no reason for inviolability to subsist any longer.

In the Dorf Case7 in 1973 the Norwegian Supreme Court considered the lawfulness of an arrest of a suspect not entitled to immunity in the private residence of a member of the (p. 227) diplomatic staff of the Embassy of Israel in Oslo. On a first hearing the case was remitted to the Magistrates’ Court for further review of whether the inviolability of the premises should have led to the release of Dorf, and whether misuse by the diplomat of his inviolability was relevant. On a second hearing the Supreme Court held that ‘the Vienna Convention contains no rule from which it follows that it is prohibited to take into custody a person without personal immunity who has been apprehended upon such premises’. The court did not deal with the relevance of police knowledge or of misuse of the diplomatic inviolability of the diplomat’s residence. They added that they were also ‘inclined to favour the view that an apprehension under those circumstances cannot be regarded as contrary to international law’, and they quoted Article 41.3 of the Convention in support of this view. While the result could perhaps have been defended—in view of the apparent lack of protest on the part of Israel—on the basis that the infringement of inviolability was a matter between sending and receiving States, the view that arrest of a person not entitled to inviolability may be carried out on inviolable premises is extremely difficult to reconcile with the meaning of the inviolability conferred under the Convention.

The Family Division of the English High Court considered in the case of Re B (Care Proceedings: Diplomatic Immunity)8 whether it was proper for the court to continue an interim care order in respect of a child of a member of the administrative and technical staff of a diplomatic mission, given that the father and his private residence were inviolable so that the order might not be capable of enforcement. The original order had been made when scars and bruising of the child detected at her school were found by consultant paediatricians examining her under child protection arrangements to have resulted from serious non-accidental injuries. The President, Dame Elizabeth Butler-Sloss, held that any difficulty in ultimate enforcement was not relevant when determining whether the court had jurisdiction to make or continue such an order. Although it was not clear whether in an emergency situation steps could be taken to protect the child if she was beaten at home, this was not such an emergency case. Dame Elizabeth said:

In my judgment, Art. 30 of the Vienna Convention relates to the premises of a diplomatic agent and not to the consequences of acts done by individuals in the premises. I see no reason to seek to strain the wording of Art. 30.1 beyond its obvious meaning.

There is no requirement under Article 10 of the Convention that the addresses of the private residences of members of the mission should be notified to the receiving State, though it is normal practice for such notifications to be given as a matter of common sense. Although some States impose requirements as to the location of mission premises—a matter discussed under Articles 21 and 22 above—restrictions on location or choice of residential accommodation are not usual. Private diplomatic residences are in general less obvious targets than embassies for demonstrators or terrorists. The same considerations of principle as apply to Article 22—for example, as to what are ‘appropriate steps’ to be taken by the receiving State to protect premises from intrusion or damage and the legal position in the event of requests for asylum—apply mutatis mutandis to Article 30.

(p. 228) Papers and correspondence

The papers and correspondence of a diplomatic agent were not accorded inviolability as such under customary international law. There is no mention of such a category in the legislative provisions of individual States which confer inviolability. Official papers of a diplomat would be entitled to inviolability as ‘archives and documents of the mission’. His personal papers would of course be ‘property of a diplomatic agent’ and protected on that basis but not (as will shortly be explained) entitled to complete inviolability. Correspondence physically situated in the diplomatic bag, in the mission premises, or in his private residence would be protected by reason of these wider entitlements to inviolability.

Article 30 of the Convention, however, goes beyond the previous customary law and gives inviolability to papers and correspondence of a diplomatic agent which may be private in character and which may be sent through the public postal service without identifying marks. This raises for the receiving State which is under a duty to abstain from any interference with such correspondence problems of identification which are similar to those discussed in the context of Article 27.2 of the Convention. The justification for inviolability of papers and correspondence is that it removes from the receiving State the temptation to search papers which may be partly official and partly private on the pretext that the search was directed to the discovery of private or personal papers or correspondence of a diplomatic agent. It must, however, be pointed out that there seem to be no cases where reliance has openly been placed on this aspect of Article 30 or where there has been complaint at any breach—no doubt because a State which wishes to intercept and read personal papers or correspondence of a diplomat which are not physically in his custody, in mission premises, or in a diplomatic bag will do so by methods which cannot be detected. Diplomats who may have to send compromising material relating to their functions will make use of cipher telegram or sealed diplomatic bag and will in general use discretion in what they commit on a personal basis to public postal facilities.

At the Vienna Conference the US delegate moved an amendment which would have limited the inviolability of a diplomat’s papers and correspondence by reference to the exceptions to diplomatic immunity set out in paragraph 1 of Article 31.9 The inviolability of his property is, of course, subject to such a limitation. The Conference, however, rejected extending this limitation to papers and correspondence. The effect is that even where a diplomat does not have immunity from jurisdiction of the courts—for example, in regard to a commercial activity which he has been exercising in the receiving State outside his official functions—it will not be possible to compel production of relevant papers in his possession which may be crucial to the success of the case. In debate the Soviet delegate argued that if the diplomat wished to win his case it would be in his interest to produce relevant papers. But there may also be occasions where it will be in the interest of the diplomat to withhold damaging evidence in his possession, and a court may be hindered from doing justice in a case properly before it. Given that the documents in issue are necessarily private in character, not mission archives, it is difficult to defend this inviolability either on grounds of logic or as necessary to enable the diplomat to perform his functions.

(p. 229) Correspondence of a diplomatic agent may not be intercepted, searched, or subjected to X-ray screening. This could cause difficulty in the event that correspondence to a diplomatic agent was suspected of containing a harmful device. In September 1972, for example, a number of letter bombs were dispatched to members of diplomatic missions of Israel, and one killed a diplomat in the Israeli Embassy in London.10 In practice systematic surveillance of incoming correspondence is very likely to be carried out at the request or with the consent of a mission which has received threats or warnings. If consent could not be secured, the duty to protect the person of a member of the mission by screening and perhaps opening mail which might present a physical threat would undoubtedly take precedence over the possibly conflicting duty to respect the inviolable character of such mail.

Property

The inviolability of the property of a diplomatic agent was generally regarded prior to the Vienna Convention as a limited one, though writers differed as to the basis of limitation. Some took the view that only property in the diplomat’s residence was entitled—thus making the protection somewhat superfluous.11 Others suggested that inviolability extended to property which the diplomat needed to live and work in the receiving State. In Novello v Toogood,12 for example, the English court used the words: ‘whatever is necessary to the convenience of an ambassador as connected with his rank his duties and religion’. Hurst more realistically argued that since only the diplomat could say what was essential to enable him to perform his functions, complete inviolability should be accorded to all his property in the receiving State.13 In 1999 two dogs used by the Russian Ambassador to guard his country residence gave rise to public controversy when neighbouring farmers accused them of savaging their sheep and called for their immediate destruction. The charges against the dogs were never proved and it appears that the dispute was amicably resolved.14

The uncertainty in the previous customary international law was reflected in debate in the International Law Commission, where several members suggested different methods of limiting inviolability of a diplomat’s property.15 Some took the view that only personal property was covered—but this was disputed and Article 30 refers to ‘property’ without limitation. The Commission eventually followed the Hurst approach and decided to give inviolability to all property, though the Commentary said that ‘inviolability primarily refers to goods in the diplomatic agent’s private residence; but it also covers other property such as his motor car, his bank account and goods which are intended for his personal use or essential to his livelihood’. In 1958 the Commission limited the inviolability of a diplomat’s property (other than his residence, papers, and correspondence) so as to permit execution if a judgment against him is given under one of the exceptions to immunity (p. 230) from jurisdiction set out in Article 31.16 If this exception applies there is no requirement that the property should be connected with the subject matter of the action brought against the diplomat.

There is in fact a further exception to the inviolability of the property of a diplomat to which no cross-reference is made in Article 30. Under Article 36.2 the personal baggage of a diplomatic agent, which may be presumed to be his property, may in exceptional circumstances and under specified procedures be inspected.

Neither the International Law Commission debates nor the Conference records clarify the question of the degree or nature of legal interest which a diplomat must have for goods to be regarded as his property. This point was in issue in the UK case of The Amazone17 where the wife of a Belgian diplomat issued process claiming possession of a yacht. Her husband moved for the writ to be set aside on the ground that he was entitled to diplomatic immunity and that he owned and was in possession of the yacht. For the wife it was argued that the defendant had to satisfy the court that the goods were his before immunity could be claimed, but the English Court of Appeal rejected this submission. It would seem that possession by a diplomatic agent will be sufficient to attract inviolability—at least where this is apparently lawful. A diplomat, or a member of the family of a diplomat, caught in the act of shoplifting could hardly expect to depart with the stolen goods even if on establishing his entitlement to immunity he himself was released without charge.18 On the other hand, if there is a dispute over goods which are not in the possession of the diplomat—for example, if his car were retained by a garage owner in exercise of a lien pending payment of money owed for its repair—the other party can wait for the diplomat to bring proceedings for recovery. Such a course of action would under Article 31.3 preclude the diplomat from invoking immunity from jurisdiction in respect of the related counterclaim.

Exchange control

A diplomat’s bank account, it is clear, is a form of ‘property’. The inviolability of his account does not, however, imply that he is in any way exempt from the exchange control legislation of the receiving State. Exchange control legislation is not a form of execution or a penalty, and under the general principle set out in Article 41 of the Convention the diplomat is obliged to respect the requirements of the receiving State. A substantive exemption from exchange control requirements is common in international agreements conferring privileges and immunities on persons connected with international organizations, and the United Kingdom in commenting on the International Law Commission’s draft suggested that there should be a similar exemption for diplomatic agents. This was, however, not acceptable to most members of the Commission.19

In practice, however, special or favourable treatment for diplomatic missions and for their members—other than permanent residents of the receiving State—is common. The (p. 231) accounts may, for example, be regarded as belonging to non-residents, so simplifying transfers to and from the sending State. As more States have moved towards permitting greater freedom for movements of capital and current payments, any difficulties for diplomatic missions have diminished. A sending State which encountered real difficulties in making transfers necessary for the exercise of its functions could complain of breach of Article 25 which requires the receiving State to ‘accord full facilities for the performance of the functions of the mission’.

Removal of motor vehicles

Consideration has already been given in the context of Article 22 paragraph 3 to the immunity given from ‘search, requisition, attachment or execution’ to the means of transport of the mission and to whether this provision permits clamping or towing away of mission cars illegally parked. Article 30 in paragraph 1 provides that the private residence of a diplomatic agent ‘shall enjoy the same inviolability and protection as the premises of the mission’ and in paragraph 2 that his property ‘shall likewise enjoy inviolability’. Taken as a whole this implies that, mutatis mutandis, identical protection from measures of legal compulsion is extended both to mission property and to the property of a diplomatic agent. The degree of inviolability given to the means of transport of the mission is not complete and the terms in which immunity is conferred have been regarded in subsequent state practice as not precluding towing away—at least where this is carried out not primarily to penalize the driver but to keep the highway clear. The same is true of the means of transport of a diplomatic agent.20

Practice in a number of capitals regarding the towing away of diplomatic vehicles has been described under Article 22.3, and it seems that in all capitals which permit this in exceptional circumstances, no distinction is made between the means of transport of the mission and the private vehicle of a diplomatic agent (or other person entitled to the inviolability of property conferred by Article 30). It is common practice for the vehicles entitled to exemption from clamping and to somewhat privileged treatment in respect of towing away to be identified by number plates familiar to police or other traffic control authorities.21 The Guidance to Law Enforcement Officers issued in 1988 by the US Department of State describes the system of distinctive vehicle licence plates, accompanying vehicle registration cards, and drivers’ permits issued by the Department to persons entitled to privileges and immunities in the United States. The Guidance warns that neither the distinctive licence plates, the registration cards, nor the drivers’ licences should be relied on as conclusive indications of the status or immunity of the operator or bearer.22

Footnotes:

1  Grotius (1625) II.XVIII.IX; Vattel (1758) IV.I. para 117 De l’Hôtel de l’Ambassadeur; Lyons (1953).

2  Adair (1929) p 215 mentions an early case in 1641 where the English Parliament accepted the inviolability of the separate lodgings of a secretary to the French Embassy.

3  eg Australia: UN Laws and Regulations p 9; Byelorussia: ibid p 55; Canada: ibid p 57; Colombia: ibid p 64; Hungary: ibid p 162; New Zealand: ibid p 218; Poland: ibid pp 242–3; Soviet Union: ibid pp 337, 340; United Kingdom: ibid p 348—Diplomatic Immunities (Commonwealth Countries and Republic of Ireland) Act 1952 s 1(1)(a); Venezuela: ibid p 403; Art 14 of the Havana Convention: ibid p 421.

4  ILC Yearbook 1958 vol I p 144; vol II p 98.

5  [1969] 2 All ER 707; [1969] 1 WLR 703; 1970 BYIL 215.

6  C 45.

7  71 ILR 552.

8  [2002] EWHC 1751 (Fam); [2003] 1 FLR 241; [2003] 2 WLR 168.

9  UN Docs A/Conf. 20/C 1/L 259; A/Conf. 20/14 p 165.

10  The Times, 20 September 1972.

11  eg Satow (4th edn 1957) p 386.

12  [1823] 1 B & C 554.

13  (1926) p 162.

14  The Times, 30 November 1999.

15  Mr El-Erian, Mr Yokota, Mr Pal, Mr Bartos, Mr Tunkin, and the Special Rapporteur Mr Sandstrom all had different ideas: ILC Yearbook 1957 vol I pp 90–1.

16  ILC Yearbook 1957 vol II p 138; 1958 vol II p 98.

17  [1939] P 322; (on appeal) [1940] P 40; AD 1938–40 p 414.

18  For a case where a Soviet diplomat was interrupted by a ‘citizen’s arrest’ while stealing a kaleidoscope from a toy shop in London, see The Times, 29 April 1971 and 1972 RGDIP 536.

19  UN Doc A/CN 4/116 p 53; ILC Yearbook 1958 vol I pp 145–6. On the position of international organizations, see Muller (1995) pp 256–60.

20  See extracts from Opinion of the Legal Counsel to the United Nations, which accepted that towing away of diplomatic cars in New York posing a risk to safety was not a measure of enforcement, 2003 AJIL 190.

21  For practice in the United Kingdom and in ‘the majority of countries’, see Hansard HL Debs 18 March 1985 cols 329–32; 1984 BYIL 470 and 474; 1985 BYIL 435. For German practice see Richtsteig (1994) p 68.

22  Guidance for Law Enforcement Officers with regard to Personal Rights and Immunities of Foreign Diplomatic and Consular Personnel 1988:27 ILM 1617 at 1628–9; Office of Foreign Missions publication Diplomatic License Plates.