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Non-Discrimination and Reciprocity

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

Eileen Denza

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 09 December 2022

Subject(s):
Diplomatic immunity — Diplomatic missions — Diplomatic relations — Right to non-discrimination — Non-discrimination

(p. 406) Non-Discrimination and Reciprocity

Article 47

  1. 1.  In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States.

  2. 2.  However, discrimination shall not be regarded as taking place:

    1. (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;

    2. (b)  where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.

The International Law Commission decided to include among its draft articles a general article setting out the obligation not to discriminate between States because it might otherwise be thought that the specific references to non-discrimination, now in Articles 11.2 and 13.1, implied that in other contexts discrimination was permissible.1 But the duty of non-discrimination could and frequently did conflict with the practice of States of regulating their bilateral relations on a basis of reciprocity. It was clear that in this context States attached more importance to reciprocity than to non-discrimination and that they would be reluctant to join a Convention which would require them to withdraw from special agreement or arrangements already in force and preclude them from adopting new ones and from withdrawing privileges or immunities because their own missions abroad were not receiving reciprocal treatment.

Article 47 lays down a general duty of non-discrimination before setting out circumstances in which discrimination is deemed not to take place. The emphasis is therefore placed on non-discrimination and on the application in each State Party of a uniform regime for diplomatic missions. Departures from this regime were to be regarded as exceptional. The permitted exceptions were so widely drafted that it was usually possible to justify any particular form of discriminatory treatment on a basis of custom, agreement, or retaliation. In the early years of the operation of the Convention there was in practice quite extensive discrimination on this basis. But the tendency has been for the Convention rules to be widely applied as settled law. States Parties have found it more convenient and more flexible to demonstrate increasing warmth or cooling in their relationships by using the modalities offered by the Convention, such as temporary withdrawal of mission staff or of a mission, limitation on the size of diplomatic missions, tighter control of mission premises, and declarations of persona non grata, rather than by discriminating in how they apply the Convention rules. Article 47 has accordingly tended to decline in importance.

(p. 407) Restrictive application

It was made clear by the International Law Commission that the words ‘restrictive application’ in Article 47.2(a) did not include treatment which was clearly contrary to the terms of the Convention. What was covered was treatment which was at the restrictive end of a scale or discretion permitted under the terms of the Convention—for example, according no additional privileges or immunities to private servants under Article 37 or to junior staff who were nationals or permanent residents of the receiving State under Article 38, or applying in a restrictive sense a provision which was ambiguous. To impose a restrictive application of this kind on the diplomatic mission of a State which accorded the same treatment would be a form of retorsion because it would involve no breach of the terms of the Convention.

If on the other hand State A broke the terms of the Convention in regard to the diplomatic mission of State B, State B would be justified under general principles of law in refusing to implement towards the mission of State A the obligation which State A had itself failed to carry out. In this case the response would constitute a reprisal for the original illegality. In the Hostages Case2 the International Court of Justice (ICJ) questioned the justifiability of reprisals by Iran as a response to allegedly unlawful conduct by the United States in violation of the Convention. They stressed that:

the rules of diplomatic law, in short, 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, 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.

The emphasis laid by the ICJ on remedies within the Convention regime—even though they did not entirely exclude the possibility of reprisals in all circumstances—has probably played a part in leading States Parties to respond to violations by using these remedies rather than by reciprocal conduct. One possible exception to this pattern was in relation to Article 26, where the refusal of rights of free movement within their territory by the Soviet Union and other Communist States was met not by any downgrading of relations by other States but by the imposition of precisely reciprocal restrictions. As pointed out in the Commentary to Article 26, the original limitations on access may have been regarded as a ‘restrictive application’ by the States whose rights of free movement were curtailed. The legal basis for countermeasures was never made entirely clear.3

The United Kingdom in its national legislation giving effect to the Vienna Convention, the Diplomatic Privileges Act 1964,4 took power to withdraw by Order in Council privileges and immunities from diplomatic missions in London ‘[i]f it appears to Her Majesty that the privileges and immunities accorded to a mission of Her Majesty in the territory of any State, or to persons connected with that mission, are less than those conferred by this Act on the mission of that State or on persons connected with that mission’. The power may be exercised whether the unfavourable treatment is a breach, a ‘restrictive application’ of the Convention, or the result of a reservation to the Convention. In fact it has never been exercised against any Party to the Convention. Restrictive (p. 408) Orders made under earlier legislation5 were initially continued in force against some States which were then not Parties to the Convention. As each became a Party and gave an assurance that they would apply all the Convention provisions to UK missions and staff, the relevant provisions were revoked until none remained. UK policy has been to do everything possible through negotiation to secure Convention treatment for its missions abroad, though the legislative powers to retaliate remain for use in the last resort.

The Canadian Law giving effect to the Vienna Convention contains similar provision to that in the United Kingdom enabling the Secretary of State for Foreign Affairs to withdraw privileges and immunities where reciprocal treatment appears not to be granted to Canadian missions abroad.6 The Netherlands provides, in a Decree of the Minister of Finance of 1978 on the exemption of diplomats from municipal taxes, that: ‘No exemption will be granted in cases in respect to which the Minister of the Interior and the Minister of Finance have declared that no reciprocity is warranted.’7 Belgium also regards tax exemptions as dependent on reciprocal treatment.8 Again, however, there seems to be no evidence of actual use of these national powers to withdraw privileges or immunities.

More favourable treatment

Greater use has been made by States Parties of the possibility of granting more favourable treatment on the basis of custom or agreement, particularly where such agreements were already in force before the Vienna Convention. The United Kingdom took powers only to give effect to agreements and arrangements which were in force before the Diplomatic Privileges Act came into force, and only in relation to two matters. Section 7(1)(a) provides for ‘such immunity from jurisdiction and from arrest and detention, and such inviolability of residence as are conferred by this Act on a diplomatic agent’. This power was used to give full immunity to junior staff of the Embassies of the Soviet Union, Bulgaria, Czechoslovakia, and Hungary, pursuant to earlier agreements. The Agreement with Hungary was terminated when Hungary became a Party to the Convention. Section 7(1)(b) permits continuation of diplomatic customs privileges to junior staff of nine States where it was required under prior agreements. The States concerned are Belgium, Bulgaria, France, Germany, Indonesia, Luxembourg, The Netherlands, Poland, and the United States, and all these arrangements for more privileged treatment remain in effect.9 Tax and customs privileges are the areas which offer the greatest possibility for granting more favourable treatment on a basis of reciprocal agreement.10

US policy

The United States when it first became a Party to the Convention in 1972 passed no special legislation to give effect to its terms. Earlier legislation, like that of the United (p. 409) Kingdom, accorded privileges and immunities to a wider class of members of diplomatic missions than does the Convention. The Assistant Attorney-General of the United States advised the Acting Legal Adviser to the State Department that in his opinion the Convention did not repeal or supersede prior US legislation. Where more favourable treatment was granted by statute than was required by the Convention, this could be based on the power under Article 47 to grant more favourable treatment ‘by custom or agreement’.11 In 1978, however, the Diplomatic Relations Act12 brought US domestic law into line with the Convention. Section 4 of the Act provided that:

The President may, on the basis of reciprocity and under such terms and conditions as he may determine, specify privileges and immunities for members of the mission, their families and the diplomatic couriers of any sending state which result in more favorable treatment or less favorable treatment than is provided under the Vienna Convention.

The Foreign Missions Act of 198213 was passed to enable the Secretary of State to regulate the provision of benefits, as therein defined, to foreign missions and their members in order to obtain reciprocal treatment for US missions abroad. Benefits are defined to include acquisition of real property, public services including customs, import, and utilities, supplies, maintenance, and transport, provision of locally engaged staff, travel, protective, financial, and currency exchange services. The Act provides that the treatment to be accorded to a foreign mission in the United States is to be determined ‘after due consideration of the benefits, privileges and immunities provided to missions of the United States in the country or territory represented by that foreign mission’. Under the Act the Office of Foreign Missions was established within the State Department and under the supervision of a Director with the rank of ambassador. The Secretary of State is given wide power to implement the Act, particularly in regard to the acquisition, location, and expansion of mission premises. No further legislative measures are required, so that a response can be made with immediate effect—even where this entails, for example, restricting or restoring tax exemptions. The provisions of the Foreign Missions Act were explained to chiefs of mission at Washington by Circular Note of 14 January 1983.14 They have also been considered in the context of Article 21 above.

In 1984 the State Department announced that wider measures of retorsion extending to cutting of telephone lines, refusal of customs clearance for diplomatic imports, and refusal of permission to purchase private residences had been taken under the Foreign Missions Act against the missions of the Soviet Union, China, Czechoslovakia, Iran, Vietnam, and Cambodia.15 The Act was invoked in 1986 to counter a Mexican Law of 1983 for diplomats to use only cars manufactured in Mexico—and resulted in the revocation of the Mexican requirement.16 On the ‘more favourable treatment’ side, the United States, like the United Kingdom, has bilateral agreements with States formerly part of the Soviet Union and with China extending full diplomatic privileges and immunities to all members of the mission who are nationals of the sending State. The (p. 410) Act is used to accord full customs franchise (exemption from duty on imports throughout a posting and not merely on first arrival) to missions of States which accord a reciprocal franchise to members of US missions. The Department of State systematically monitors tax exemptions granted to US missions abroad and adjusts the privileges accorded to missions in the United States so as to ensure a high level of reciprocity.17 Evidence of the practice of other States suggests that this degree of fine-tuning—although clearly permitted under Article 47 of the Convention—is unique, and it is possible only because of the rapid response facility offered by the Foreign Missions Act.

Footnotes:

1  ILC Yearbook 1958 vol I pp 112, 194–8; vol II p 105; Hardy (1968) pp 83–7.

2  Case concerning United States Diplomatic and Consular Staff in Tehran 1980 ICJ Reports 3 at paras 83–7.

3  Lecaros (1984) pp 91, 126, and 151.

4  C 81.

5  Diplomatic Immunities Restriction Act 1955, 4 & 5 Eliz 2 c 21.

6  1986 Can YIL 395.

7  1979 NYIL 435.

8  Salmon (1994) para 473.

9  London Gazette, 1 October 1964; Satow (6th edn 2009) paras 10.11 and 10.16.

10  See for example, powers taken under German legislation, described in Richtsteig (1994) p 106.

11  1973 AJIL 760.

12  Public Law 95–393; 22 USC 254b; 1978 RGDIP 882.

13  Title II of Department of State Authorization Act, Fiscal Years 1982 and 1983, Public Law 97–241; 22 US Code § 4301 et seq; 1984 AJIL 431.

14  Printed in 1984 AJIL 434. See also comment in 1983 RGDIP 394.

15  1985 RGDIP 141.

16  1986 RGDIP 118.

17  1981–8 DUSPIL 1043. See also Satow (6th edn 2009) paras 10.11 and 10.18.