Harv Research (1932), pp 99–107, 122–33 Eagleton, AJ, 19 (1925), pp 293–314 Giese and Strupp, ZV, 13 (1926), Suppl Report by Diena and Mastny for League Codification Committee, AJ, 20 (1926), Special Suppl, pp 151–75, and comment by Stowell, AJ, 20 (1926), pp 735–8 Hurst, Hag R (1926), ii, pp 124–51 Lyons, BY, 31 (1954), pp 299–305 Romberg, BY, 35 (1959), pp 235–40 Giuliano, Hag R, 100 (1960), ii, pp 181–93 Cahier, Le Droit diplomatique contemporain (1962), pp 195–231 Kiss, Répertoire, 3, pp 286–93, 347–59 Parry, BDIL, 7, pp 887–901 Whiteman, Digest, 7, pp 174–220, 353–403 Hardy, Diplomatic Law (1968), pp 32–52 Juillard, AFDI, 17 (1971), pp 206–31 Nascimento e Silva, Diplomacy in International Law (1972), pp 91–110 Satow, pp 106–23 Denza, Diplomatic Law (1976), pp 75–112, 119–48, 263–72 Przetacznik, Anglo-American LR, 9 (1980), pp 177–215 Hevener (ed), Diplomacy in a Dangerous World (1986) Restatement (Third), i, pp 483–91 Sen, A Diplomat’s Handbook of International Law and Practice (3rd ed, 1988), pp 107–26, 129–36 Dembinski, The Modern Law of Diplomacy (1988), pp 163–82, 191–9, 247–51 Murty, The International Law of Diplomacy (1989), pp 366–90 Lewis, State and Diplomats Immunity (3rd ed, 1990), pp 133–56.
§ 492 Protection due to diplomatic agents
Article 29 of the Vienna Convention on Diplomatic Relations 1961 confirms the customary rule of international law by providing that the person of a diplomatic agent is inviolable and that he is not liable to any form of arrest or detention: the receiving state must treat him with due respect and take all appropriate steps to prevent any attack on his person, freedom or dignity.1 Customarily this requires the receiving state not (p. 1073) only to take the necessary police measures to prevent offences, but also to punish offenders.2 The protection due to diplomatic agents must also be accorded to the members of their family,3 to their residences,4 property, papers and correspondence.5
The spate of terrorist6 attacks on, and kidnappings of, diplomats in recent years has prompted states to adopt a number of measures in an endeavour to ensure to diplomats an adequate degree of protection. In February 1971 the Organisation of American States concluded a Convention to Prevent and Punish the Act of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance.7 In 1973 the General Assembly of the United Nations adopted a Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents.8 States party to the Convention undertake to make certain acts committed against internationally protected persons9crimes under its law, punishable References(p. 1074) by appropriate penalties which take into account the grave nature of the offences. The acts include the intentional commission of murder, kidnapping, or other attack upon the person or liberty of an internationally protected person, violent attacks on his official premises or private accommodation or means of transport likely to endanger his person or liberty, and threats, attempts and participation in any such attack (Art 2). A state party to the Convention must ensure that it has jurisdiction over such crimes if committed in its territory or on board a ship or aircraft registered in the state, or is committed by one of its nationals, or is committed against an internationally protected person who is such by virtue of functions exercised on behalf of the state (Art 3). The Convention contains several Articles providing for cooperation between states in preventing the crimes set out in Art 2, including provisions for the prosecution of an alleged offender by the state where he is present, or his extradition by that state. Other measures adopted to attempt to secure more effective protection for diplomats have included the enactment of special legislation,10 and the exclusion of attacks on diplomats from the notion of political offences for purposes of extradition.11
§ 493 Limitation of inviolability
While the principle of the inviolability of diplomatic envoys is well established, one exception is widely asserted. If a diplomatic envoy commits an act of violence which disturbs the internal order of the receiving state in such a manner as makes it necessary to put him under restraint for the purpose of preventing similar acts, or if he conspires against the receiving state and the conspiracy can be made harmless only by putting him under restraint, he may be arrested for the time being, although he must in due time be safely sent home.1 The terms of Art 29 of the Vienna Convention on Diplomatic Relations do not, however, refer to such an exception.2 It must be emphasised that a diplomatic envoy cannot complain if he is injured in consequence of his own unjustifiable behaviour, as for instance in attacking an individual References(p. 1075) who in self-defence retaliates,3 or in unreasonably or wilfully placing himself in dangerous or awkward positions, such as in a disorderly crowd.4
§ 494 Inviolability of diplomatic premises
A permanent diplomatic mission needs premises from which to operate,1 and the receiving state must help the sending state obtain premises for the mission.2 There is a right to use the flag and emblem of the sending state on the premises of the mission,3 thus clearly identifying them. Customary international law has long recognised the inviolability of such premises: Art 22 of the Vienna Convention on Diplomatic Relations 1961 reasserts that rule of law.4 Such premises are the property of the sending state and consequently, apart from special rules which apply to diplomatic property, they may also benefit from rules relating to sovereign immunity.5 Article 30 also provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.6 Even References(p. 1076) after a diplomatic mission has come to an end, the mission’s premises, property and archives must still be protected.7 The present inviolability of diplomatic premises has developed from the former condition of things, when the official residences of envoys were in every respect considered to be outside the territory of the receiving states, and when this exterritoriality was, in many cases, even extended to the whole quarter of the town in which such a residence was situated. One used then to speak of the franchise du quartier or the ius quarteriorum. An inference from this franchise du quartier was the so-called right of asylum, whereby envoys claimed the right to grant asylum, within the boundaries of their residential quarters, to any individual who took refuge there.8 But already in the seventeenth century most states opposed this franchise du quartier, and it totally disappeared9 in the eighteenth century, leaving behind, however, the claim of envoys to grant asylum within their official residences.10 During the nineteenth References(p. 1077) century this general right to grant asylum vanished, only leaving traces in Latin American practice and in certain very exceptional circumstances.11
Nowadays12 the inviolability of diplomatic premises13 involves their inaccessibility to agents of the receiving state,14 such as officers of justice, police, or revenue, without the consent of the head of the mission.15 No act of jurisdiction16 or administration of the receiving state can take place within these premises, except with such consent. The premises are immune from search, requisition, attachment or execution.17 The receiving state is under a special duty18 to take all appropriate steps to protect the premises of the mission against intrusion19 or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.20
References(p. 1078) The inviolability of diplomatic premises was firmly upheld by the International Court of Justice in the Case Concerning United States Diplomatic and Consular Staff in Tehran.21 The case arose out of acts of rioters and other militants who, in November 1979, attacked and occupied the United States embassy in Tehran and consulates in Tabriz and Shiraz, seizing the occupants and holding them hostage. The Court held Iran to have been in breach of its international obligations to take steps to prevent the attack from taking place, and although those attacking the premises and their occupants were held to have been, to start with, References(p. 1079) without official status such as to make their conduct imputable to Iran, their status later changed so as to make them agents of the state for whose acts Iran was internationally responsible.22 In its judgment the Court referred to the obligations resting on Iran under several provisions of the Vienna Conventions on Diplomatic and Consular Relations 1961 and 1963, to take appropriate steps to ensure the protection of the United States embassy and consulates, their staffs, their archives, their means of communication and the freedom of movement of the members of their staffs, and said that these ‘most categorical obligations’23 represented obligations which were ‘not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general international law’.24 Once the occupation of the various premises had taken place, and the personnel had been taken hostage, ‘the action required of the Iranian Government by the Vienna Conventions and by general international law was manifest. Its plain duty was at once to make every effort, and to take every appropriate step, to bring these flagrant infringements of the inviolability of the premises, archives and diplomatic and consular staff of the United States embassy to a speedy end, to restore the consulates at Tabriz and Shiraz to United States control, and in general to re-establish the status quo and to offer reparation for the damage’.25 Instead, the Court found that Iran had approved of the acts in question, and had continued to apply them. This, the Court held, ‘clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna Conventions even more serious than those which arose from their failure to take any steps to prevent the attacks on the inviolability of these premises and staff’.26 These breaches involved such matters as the prohibition on agents of the receiving state entering upon diplomatic premises without consent; the prohibition of any arrest or detention of diplomatic agents and any attack on their persons, freedom or dignity; the obligation to allow the performance of their functions; and the obligation to respect ‘the absolute inviolability’ of diplomatic and consular archives and documents. As to the principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions, the Court regarded it as:
‘one of the very foundations of this long-established regime, to the evolution of which the traditions of Islam made a substantial contribution. The fundamental character of the principle of inviolability is, moreover, strongly underlined by the provisions of Articles 44 and 45 of the Convention of 1961 (cf. also Arts 26 and 27 of the Convention of 1963). Even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State.’27
References(p. 1080) Despite their inviolability, the premises of the mission must not be used in any manner incompatible with the functions of the mission28 as laid down in the Vienna Convention on Diplomatic Relations or by other general rules of international law or by any special agreements in force between the sending and the receiving state.29 If the inviolability of the premises is abused, the receiving state need not bear it passively.30 If a crime is committed inside the house of an envoy References(p. 1081) by an individual who does not enjoy personally immunity from the local jurisdiction, the criminal must be surrendered to the local government.31 Again, an envoy has no right to seize a subject of his home state who is in the receiving state, and keep him under arrest inside the embassy with the intention of handing him over to his home state.32
Legal proceedings brought in respect of premises used as an embassy will usually be brought against the sending state, and will thus fall to be determined primarily in accordance with the rules relating to state immunity.33 The fact that the premises are being used in connection with a mission of a foreign state may not necessarily exclude the exercise of jurisdiction in proceedings relating to them, so long as no interference with the diplomatic functions of the foreign state References(p. 1082) is caused thereby.34 Building development by foreign governments in respect of diplomatic premises is subject to planning permission from the authorities of the receiving state.35
§ 495 So-called diplomatic asylum
The practice of granting diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of dispute to what extent it forms part of general international law.1
There would seem to be no general obligation on the part of the receiving state to grant an ambassador the right of affording asylum to a refugee, whether criminal or other, not belonging to his mission.2
Of course, an ambassador need References(p. 1083)
not deny entrance to refugees seeking safety in the embassy. But as the International Court of Justice noted in the Asylum
Thus, in the absence of an established legal basis, such as is afforded by treaty5 or established custom,6 a refugee must be surrendered to the territorial authorities7 at their request and if surrender is refused, coercive measures may be taken to induce it. Bearing in mind the inviolability of embassy premises, the permissible limits of such measures are not clear. The embassy may be surrounded by soldiers,8 and ingress and egress prevented; but the legitimacy of References(p. 1084) forcing an entry in order forcibly to remove the refugee is doubtful,9 and measures involving an attack on the envoy’s person would clearly be unlawful. Coercive measures are in any case justifiable only in an urgent case, and after the envoy has in vain been requested to surrender the refugee.
It is sometimes suggested that there is, exceptionally, a right to grant asylum on grounds of urgent and compelling reasons of humanity,10 usually involving the refugee’s life being in imminent jeopardy from arbitrary action. The practice of states has afforded instances of the grant of asylum in such circumstances.11 The grant of asylum ‘against the violent and disorderly action of irresponsible sections of the population’12 is a legal right which, on grounds of humanity, may be exercised irrespective of treaty; the territorial authorities are bound to grant References(p. 1085) full protection to a diplomatic mission providing shelter for refugees in such circumstances. There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases. The International Court’s judgment in the Asylum case suggests that the grant of asylum may be justified where ‘in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims’.13 However, the Court went on to emphasise that ‘the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals’.14 Thus it would seem not to be enough to show that a refugee is to be tried for a ‘political’ offence: it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded. Even where permissible, asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist. Thereafter, the refugee must be surrendered to the territorial authorities if they so request. It is often the practice for an embassy to seek a safe conduct out of the country for the refugee whose surrender has been requested by the local authorities, and such safe conducts are sometimes granted: however, ‘this practice does not and cannot mean that the state, to whom such a request for a safe conduct has been addressed, is legally bound to accede to it’.15
It is the head of the mission concerned who initially determines whether the circumstances are such as to entitle him to grant asylum; but he does not have an exclusive right in this respect. Even where circumstances exist in which a right to grant asylum exists, the head of mission is under no legal obligation to exercise that right, and may refuse to do so. Where asylum has been granted, the diplomatic mission must ensure that the refugee does not use the protection temporarily afforded him by his asylum in a manner inimical to the interests of the receiving state, as by continuing, in the case of a political refugee, to have contact for political purposes with persons outside the embassy, or to engage in propaganda against the territorial authorities.16
§ 496 The Asylum case between Colombia and Peru
While, therefore, there is no general right to refuse to surrender to the territorial state persons who have been granted asylum within diplomatic premises, the position is different where the right to grant asylum, and the duty by the territorial state to respect it, are expressly recognised in a treaty — as is the case in numerous treaties concluded between Latin-American states.1 In the Asylum case between Colombia and References(p. 1086) Peru the International Court of Justice, confronted with the interpretation of a treaty of that character, held that although, in the first instance, the head of the foreign diplomatic mission is entitled to determine whether a case for granting asylum, in conformity with the treaty, has arisen, such determination is not conclusive. ‘The principles of international law do not recognise any right of unilateral and definitive qualification [of the right to grant asylum] by the state granting diplomatic asylum.’2 However, in case of disagreement between the states in question whether asylum has been properly granted in pursuance of the treaty, the territorial state is not entitled to take unilateral action to enforce the surrender of the person concerned. Recourse must be had to some impartial agency, judicial or other, for resolving any disagreement on the question. If the territorial state demands that that person be sent out of the country, it must issue a safe-conduct; when it does so, the diplomatic mission is under a duty to arrange for his departure. A serious difficulty arises if, as was the position in the Asylum case, it is held that the asylum was not granted in accordance with the treaty3 and must be terminated and yet, having regard to the terms of the treaty prohibiting the surrender of persons accused of political offences, that there is no obligation — and no right — to surrender him. It is believed that in such cases it is within the province of a court to resolve the difficulty by a decision laying down which of the two conflicting rights must prevail in law,4 a task which the International Court of Justice preferred to leave for direct settlement by the parties.
§ 497 Inviolability of other diplomatic property
Such property as is within premises which are inviolable shares the protection of that inviolability. The furnishings and other property on the premises of a mission and the means of transport1 of the mission are immune from search, requisition, attachment or execution.2 The archives and documents of the mission are inviolable at any time References(p. 1087) wherever they may be.3 The papers and correspondence of a diplomatic agent are similarly inviolable, and (subject to an exception in respect of measures of execution in certain matters having nothing to do with his diplomatic character) so is his property.4
§ 498 Inviolability of diplomatic communications
It is essential to the proper functioning of a diplomatic mission that it be able to communicate freely for all official purposes, both with its home government and with other missions of its own state in other countries. A receiving state1 must therefore permit and protect such free communication.2 A mission may use appropriate means for such References(p. 1088) communication, including diplomatic couriers and messages in code or cypher, although a wireless3 transmitter may be used only with the consent of the receiving state. All official correspondence of the mission is inviolable. The diplomatic bag4 may not be opened or detained;5 the packages constituting the bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.6 While the diplomatic bag usually consists of a container which may reasonably be called a ‘bag’, there is no rule as to its size and occasionally quite large containers are used as ‘diplomatic bags’.7 Although the use of even small containers can be abused (as by the inclusion within them of drugs or small firearms), the use of large containers greatly increases the possibilities of abuse, even including their use to smuggle people out of the receiving state.8
References(p. 1089) Concern over the possible abuse of diplomatic bags led to the International Law Commission being requested in 1976 to reconsider the question of the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. In 1989 the Commission adopted9 a set of 32 draft Articles on the subject, and two draft optional protocols, which it referred to the General Assembly for a decision on what further action to take. The Assembly, at its 1989 and 1990 sessions deferred10 a decision. So far as concerns the diplomatic bag,11 the draft articles apply to the ‘diplomatic bag employed for the official communications of a State with its missions … wherever situated, and for the official communications of those missions … with the sending State or with each other’ (Art 1).12 The ‘diplomatic bag’ is defined as meaning:
‘the packages containing official correspondence, and documents or articles intended exclusively for official use, whether accompanied by diplomatic courier or not, which are used for the official communication referred to in Article 1 and which bear visible external marks of their character as a diplomatic bag’ (Art 3(2)).13
The receiving and transit states must permit and protect the official communications of the sending state, effected through the diplomatic bag (Art 4); the sending state must ensure that the privileges and immunities accorded to its diplomatic bag are not used in a manner incompatible with the object and purposes of the draft Articles (Art 5), and must take appropriate measures to prevent the dispatch through its diplomatic bag of articles other than official correspondence, and documents and articles intended exclusively for official use (Art 25.2). The diplomatic bag is ‘inviolable wherever it may be’ and ‘shall not be opened or detained and shall be exempt from examination directly or through electronic or other technical devices’ (Art 28.1).14 The receiving and transit states must permit the entry, transit and departure of the diplomatic bag, and grant exemption from customs duties, taxes and related charges, other than charges for storage, cartage and similar services rendered.
1 In the Case Concerning United States Diplomatic and Consular Staff in Tehran (Provisional Measures) the ICJ noted that:
See generally on this case § 494, n 21.
As to attacks upon diplomatic agents in newspapers see Hurst, Hag R (1926), ii, pp 132, 133; Moore, iv, p 629; and also, as regards insults to them, Parry, BDIL, 7, pp 709–11. During the First World War the Swiss Government passed a decree prohibiting propaganda against the German Minister and military attaché. In US v Ortega (1826), 11 Wheaton, p 467, it was suggested that a state has a legal duty to take legal action against a person who insults or scorns an envoy. The law of some states makes insulting an envoy a special offence: see Genet, pp 487ff. See also von Dardel v USSR (1985), ILR, 77, p 258, allowing proceedings in tort against the Soviet Union for its violation of international law in failing to protect, and indeed unlawfully imprisoning, a foreign diplomat. For an affirmation of the duty of protection of foreign diplomatic representatives from intimidation see the decision of the US Court of Appeals, District of Columbia, in 1938, in Frend v United States: AD, 9 (1938–40), No 161.
2 There is no need for a State to have in its municipal law any special offence for infringing an envoy’s inviolability, so long as the ordinary criminal law enables suitable punitive action to be taken. In English law it is probably no longer a separate crime (if it ever was) to assault a foreign envoy (see Lyons, BY, 31 (1954), p 302): and the Diplomatic Privileges Act 1708 (now repealed), passed in consequence of the Russian ambassador in London having been arrested for a debt of £300, has always been considered as declaratory of the existing law in England, and not as creating new law. Adair, The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries (1929), pp 237–42, criticises this view, but the evidence which he adduces cannot be regarded as proving his contention. The law of many states has punished infractions of the inviolability of diplomatic agents as ‘infractions of the law of nations’: Respublica v De Longchamps (1784) 1 Dall 111; Dickinson, Cases, p 810; United States v Benner (1830) Baldw 234; Hudson, Cases, p 780; Hackworth, iv, § 398; and Hurst, Hag R (1926), ii, pp 128–30. See also Stuart, American Diplomatic and Consular Practice (2nd ed, 1952), pp 234–6; and, for a number of incidents involving insult or injury to diplomatic agents, see Parry, BDIL, 7, pp 701–16; also BPIL (1965-I), pp 55–8.
6 See § 122, as to terrorism generally.
7 For the text, see AJ, 65 (1971), p 898; ILM, 10 (1971), p 255.
8 Res 3166 (XXVIII); ILM, 13 (1974), p 41. The Convention followed a study of the matter by the ILC, which prepared a set of draft articles, together with a commentary: YBILC (1972), vol II, pt 2, pp 312–23. For comment on those draft Articles, and the Convention, see Rozakis, ICLQ, 23 (1974), pp 32–72; Wood, ICLQ, 23 (1974), pp 791–817; Bloomfield and Fitzgerald, Crimes Against Internationally Protected Persons (1975); Przetacznik, Anglo-American LR, 9 (1980), pp 177–215. See also Murphy, in Legal Aspects of International Terrorism (eds Evans and Murphy, 1978), pp 277–340. For US legislation implementing the Convention, and the OAS Convention of 1971, see ILM, 15 (1976), p 1384. In the UK the Convention was implemented by the Internationally Protected Persons Act 1978. In Australia the Convention was implemented by the Crimes (Internationally Protected Persons) Act 1976, and for a prosecution under that Act for an attack on a diplomat and his wife, see Duff v R (1979), ILR, 73, p 678.
9 An ‘internationally protected person’ is defined in Art 1. The term applies to a Head of State, a Head of Government or a Minister for Foreign Affairs, and members of their family accompanying them; and a representative or official of a state or intergovernmental organisation who, at the time of the offence against him, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.
10 For the Act for the Protection of Foreign Officials and Official Guests of the United States, adopted by the USA in 1972, see ILM, 11 (1972), p 1405.
1 Thus in 1717 the Swedish ambassador in London, Gyllenburg, who was an accomplice in a plot against King George I, was arrested and his papers were searched. In 1718 the Spanish ambassador in France, Prince Cellamare, was placed in custody because he organised a conspiracy against the French Government. See Phillimore, ii, §§ 166 and 170; and Hall, § 50, who suggested that the ground of justification is either: (1) an act of self-defence against the state whose representative has offended, or (2) that there is a reservation of the right to exercise jurisdiction over an envoy ‘upon sufficient emergency’; Hall preferred (2). In the Case Concerning United States Diplomatic and Consular Staff in Tehran the ICJ acknowledged that the inviolability of members of a mission ‘does not mean … that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime’ (ICJ Rep (1980), p 40).
2 The ILC, in its commentary upon Art 27 of its final draft Articles on Diplomatic Intercourse and Immunities (YBILC (1958), vol II, p 97) stated that the principle that a diplomatic agent is exempted from measures that would amount to direct coercion ‘does not exclude … either measures of self-defence or, in exceptional circumstances, measures to prevent him from committing crimes or offences’.
3 See The State v Acuna Araya, AD, 4 (1927–28) No 243.
4 See Art 6 of the rules adopted by the Institute of International Law in 1895 (Annuaire, 14, p 241
1 The sending state must obtain the prior express consent of the receiving state to establish offices forming part of the mission in localities away from those of the mission itself: Vienna Convention, Art 12.
2 Ibid, Art 21. For an agreement between the UK and the Soviet Union for the mutual provision of sites for their respective embassies, see TS No 42 (1987). The receiving state must similarly, where necessary, assist missions in obtaining suitable accommodation for their members: Vienna Convention, Art 21. The receiving state may require foreign diplomatic missions to seek its consent to the use of premises for purposes of the mission, and to notify it of intended changes of use or ownership. For examples of such controls see, as to the USA, AJ, 79 (1985), pp 1050–51; and as to the UK, the Diplomatic and Consular Premises Act 1987.
As to the envoy’s right to reside in the receiving state’s capital, see Parry, BDIL, 7, pp 688–90. As to the particular situation of Israel in this respect, see § 55, n 51.
3 Vienna Convention, Art 20. And see the Diplomatic and Consular Missions Act 1978 enacted in Australia so as to prevent the improper use of diplomatic and consular signs and titles: ILM, 17 (1978), p 1442.
4 By virtue of the Vienna Convention, Art 1(i), ‘premises of the mission’ means ‘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’. See also Lyons, BY, 34 (1958), pp 373–4. The express reference to the residence of the head of mission being included in the premises of the mission has been held to exclude the residence of other members of the mission from the scope of such premises: Intpro Properties v Sauvel  1 QB 1019, 1032–3.
It is not always clear, despite the definition in the Convention, what premises are to be regarded as the premises of the mission and so entitled to inviolability. The way in which some embassies are organised may be such as to involve the use of premises for operating a state tourist office, a school for the children of embassy staff, a trade promotion office, and other similar activities. Premises used exclusively for housing members of the mission and their families have been held to be used for purposes of maintaining the mission: United States v County of Arlington, Virginia (1982), ILR, 72, p 652. As to premises formerly, but no longer, used for diplomatic purposes, see n 7.
5 See §§ 109–10; § 483, n 1; § 494, n 33; and § 500, n 7. In cases involving a revolutionary change of government in the sending state, questions may arise as to the ownership of its diplomatic premises abroad, either as between competing factions for power in the sending state, or in terms of the local law in the receiving state. For an example of the latter, see Attorney-General for Fiji v Robt Jones House Ltd (1988), ILR, 80, p 1.
6 The provision of the Vienna Convention suggests that any residence is inviolable, since it does not distinguish between a diplomatic agent’s official house, and any private premises he may own as a residence, eg a country house. Such a distinction is made in Art 31.1(a), regarding immunity from suit, and was also suggested in Immunity of Legation Buildings (Czechoslovakia) Case, AD (1927–28), No 251, Montwid-Biallozor v Ivaldi, AD (1925–26), No 246, and Re Khan, AD (1931–32), No 182. And see Intpro Properties v Sauvel  QB 1019. In Agbor v Metropolitan Police Commissioner  2 All ER 707, the Court of Appeal held that the provisions of the Vienna Convention did not entitle the police (acting on the request of the diplomatic mission in question) to evict a person in occupation of premises under a claim of right, where those premises had, until four and a half weeks previously, been the private residence of a diplomatic agent whose intended return to those premises had been asserted by the diplomatic mission. For the entry of Norwegian police into an attaché’s apartment to seize and arrest a person who was there, not himself possessing diplomatic status, see the Dorf Case (1973), ILR, 71, p 552, holding that in the circumstances the apprehension was not contrary to international law, and that the apprehended person could properly be tried by Norwegian courts.
7 See § 530, n 4. It has, however, been held that once premises are no longer used for diplomatic purposes, as where they have not been so used for many years and there is no immediate likelihood of them being so used again, the protection due to them as diplomatic premises comes to an end: see Tietz v People’s Republic of Bulgaria (1959), ILR, 28, p 369; Weinmann v Republic of Latvia, ibid, p 385 ; Bennett and Ball v People’s Republic of Hungary, ibid, p 392; Cassirer and Geheeb v Japan, ibid, p 396; and see Romberg, BY, 35 (1959), p 235. See also Agbor v Metropolitan Police Commissioner  2 All ER 707 (as to premises formerly, but no longer, used as the private residence of a diplomatic agent); Westminster City Council v Government of the Islamic Republic of Iran  3 All ER 284.
For the right of the receiving state to acquire premises formerly, but no longer, used as diplomatic premises, see, as to the position in the UK, the Diplomatic and Consular Premises Act 1987, ss 2 and 3, and R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Samuel: (1989), ILR, 83, p 232, BY, 58 (1988), pp 473–9; and see associated proceedings in Westminster City Council v Tomlin  1 All ER 920. See also as to the position in the USA, s 205(c) of the Foreign Missions Act 1982 (ILM, 21 (1982), p 1125). Can the official residence of an envoy, if the property of his home state, be confiscated after his departure by the state on the territory of which it is situated as a measure of reprisals? During the First World War, on 25 August 1916, the Italian Government confiscated the Palais de Venice in Rome, which was the seat of the Austrian Legation at the Holy See, as a measure of reprisals against the bombardment of Venice by Austrian aircraft. See Scelle, RG, 24 (1917), pp 244–55, and vol II of 7th ed of this work § 247.
8 See, however, Grotius, ii, c 18, § 8: ‘Ex concessione pendet ejuss apud quem agit. Istud enim juris gentium non est’. See also Bynkershoek, De foro legatorum, c 21.
9 But see Art 7 of the final protocol between China and certain foreign powers, dated 7 September 1901, acknowledging a legation quartier in Peking: TS No 17 (1902).
10 Two well-known cases concerned the refuge sought in 1726 by the Duke of Ripperda in the residence of the British ambassador in Madrid, and that sought in 1747 by a merchant named Springer who was accused of high treason, and took refuge in the house of the British ambassador at Stockholm. See Martens, Causes célèbres, i, p 178 and ii, p 52. As these two examples show, the right of asylum, although claimed and often conceded, was nevertheless not universally recognised.
12 See Vienna Convention, Art 22.
13 As to the absence of immunity in the case of non-diplomatic premises such as the office of a foreign state railway or trade delegation see § 568, n 5.
14 Thus it is clear, for example, that the introduction by a receiving state into the premises of a foreign diplomatic mission of microphones or other eavesdropping devices involves a violation of the mission’s inviolability. See RG, 91 (1987), p 646.
15 The intervention of the local police sometimes takes place at the request of the ambassador, as where he seeks their assistance in securing the removal of demonstrators who have forced their way into the embassy’s premises. See, eg Fatemi v United States (1963), ILR, 34, p 148. No breach of the embassy’s inviolability occurs in such circumstances.
For an instance where South African police, apparently inadvertently, entered the premises of the Netherlands embassy and seized an individual, see RG, 90 (1986), pp 180–81, and Neth YBIL, 17 (1986), p 181: an apology was demanded, and given. See also the Dorf Case (1973), ILR, 71, p 552, where Norwegian police appear to have entered a diplomat’s apartment without being aware of its inviolable status, there seizing a person wanted in connection with a criminal offence.
The precise significance of ‘inviolability’ is not entirely clear, particularly in so far as it might cover acts other than those involving physical intrusions upon diplomatic premises. As to interference by the authorities of the receiving state with visitors to a diplomatic mission, see Fawcett, BY, 34 (1958), p 386. Inviolability sometimes gives rise to the inaccurate fiction of the exterritoriality of embassy premises, as to which see § 499, n 4.
16 But the law of the receiving state will still apply to events taking place on a foreign embassy’s premises. See generally § 499, n 4.
17 As to enforcement of judgments against immovable property of a foreign state if such property is identical with the legation buildings or official residence of the diplomatic representative of that foreign state, see the judgment of the Supreme Court of Czechoslovakia of 28 December 1929 (Immunity of Legation Buildings (Czechoslovakia) Case, AD, 4 (1927–28), No 251), reversing, in effect, the decision of that Court of 26 April 1928 (ibid, No 111). This was a case of enforcing an award rendered against Hungary by the Mixed Arbitral Tribunal established by the Treaty of Versailles. For an account and criticism of the first stage of the case see Deak, AJ, 23 (1929), pp 582–94. See also Legation Building (Execution by Hypothecation) Case, AD, 1 (1919–22), No 208. And see § 109, at n 30ff.
18 It does not need to, but may, enact special laws for the purpose: see, eg the Act for the Protection of Foreign Officials and Official Guests of the United States 1972 (ILM, 11 (1972), p 1405).
19 The service of a writ upon a diplomat on diplomatic premises has been held contrary to diplomatic immunity: see Soc Centrale de Construction v De Ayala, ILR, 18 (1951), No 112; Hellenic Lines Ltd v Moore (1965), ILR, 42, p 239. But service by mail upon the embassy has been held not to violate the ambassador’s immunity: Renchard v Humphreys & Harding, Inc, AJ, 67 (1973), p 789; Caravel Office Building and Hynning v Peruvian Air Attaché, ILM, 14 (1975), pp 1435, 1436–7. See also § 500, n 2.
As to trespass upon diplomatic premises, see the Criminal Law Act 1977, s 9, as amended by the Diplomatic and Consular Premises Act 1987, s 7(2).
20 It is relatively rare for the authorities of the receiving state overtly to infringe the inviolability of diplomatic premises by entering them by force (but see n 30). It is, however, less rare for diplomatic premises to be forcibly entered, and sometimes sacked, by large numbers of the local population, and for the authorities of the receiving state either knowingly to fail to take sufficient steps to protect the premises or positively to connive at, or even encourage, the action of the mob. The responsibility of the receiving state for such action is manifest. One of the most extreme of such cases in recent years occurred in August 1967 when a mob of ‘Red Guards’ broke into, and burned down, the British diplomatic premises in Peking: see The Times, 23 August 1967, and RG, 72 (1968), p 409. Similar acts were perpetrated in the same year against the Soviet Union’s diplomatic premises in Peking. A similar incident occurred, for example, in 1963 (British embassy in Indonesia; see BPIL (1963-II), p 133). As to the seizure by Romanian émigrés of the Romanian embassy in Berne in February 1955, see Louis-Lucas, AFDI, 1 (1955), pp 175–82. As to the acts of rioters in Tehran who broke into and occupied the US embassy in Tehran in 1979, see n 21.
Damage to diplomatic premises, whether resulting from direct action by the receiving state or from the acts of rioters which it should have prevented, is often remedied by the payment of compensation. See eg as to the sacking of the US embassy in Pakistan, RG, 85 (1981), p 880; and as to British and Iranian diplomatic properties in the respective states, the agreement concluded in 1988, TS No 65 (1988); RG, 92 (1988), p 995.
As to the prevention of picketing of diplomatic (and consular) premises, see the joint resolution of the US Congress, adopted on 15 February 1938 (AJ, 32 (1938), Suppl, p 100); Preuss, AJ, 31 (1937), pp 705–12; Stowell, AJ, 32 (1938), pp 344–6; Frend v United States, AD, 9 (1938–40), No 161. See also the Act for the Protection of Foreign Officials and Official Guests of the United States 1972 (ILM, 11 (1972), p 1405); Jewish Defence League Inc v Washington (1972), ILR, 60, p 384; and Zaimi v United States (1973), ILR, 61, p 601. For the receiving state to allow peaceful and orderly picketing, involving no damage to embassy property and no violence to embassy personnel, and not causing any interference with the performance by the mission of its functions, probably does not involve the receiving state in any violation of international law. See, in this sense, the finding of a Magistrates’ Court in London in respect of an orderly political demonstration outside the South African embassy: R v Roques, House of Commons, Report of the Foreign Affairs Committee (1984), para 50.
21 ICJ Rep (1980), p 3. The Court had earlier ordered certain provisional measures: ICJ Rep (1979), p 7. The incident was also considered by the Security Council: see the appeals made by the President of the Council on 9 and 27 November 1979 (UN Docs S/13616 and S/13652), and SC Res 457 and 461 (1979); and other documents at ILM, 19 (1980), pp 248–57. During the mob’s attack on the US embassy some members of the staff escaped into the neighbouring Canadian embassy, which sheltered them and facilitated their escape from Iran: see Can YBIL, 19 (1981), pp 325–6.
The matter was eventually settled by the ‘Algiers Accords’ of January 1981 (ILM, 20 (1981), pp 223–40, 282–93, 412–21 and 551–3), under which the US diplomatic and consular staff were released, US measures against Iranian assets (see § 111, n 11) were lifted, and outstanding claims were referred to the Iran-US Claim tribunal in The Hague (see § 158, n 5). For action taken by the UK to bring pressure to bear on Iran see the Iran (Temporary Powers) Act 1980.
For comment on the incident, the judgments of the ICJ and the settlement see Coussirat-Coustère, AFDI, 25 (1979), pp 297–313, and 26 (1980), pp 201–24; Gross, AJ, 74 (1980), pp 395–410; Falk, ibid, pp 411–17; Bassiouni, ibid, pp 609–33; RG, 84 (1980), pp 619–31, 876–94, 1109–17 and 85 (1981), pp 133–45; Zoller, RG, 84 (1980), pp 973–1026; Paul, Harv ILJ, 21 (1980), pp 268–74; Juillard, AFDI, 27 (1981), pp 19–44; Grzybowski, ICLQ, 30 (1981), pp 42–58; University of Miami JIL, 13 (1981) (a special issue devoted to the subject); Rubin, YB of World Affairs, 36 (1982), pp 213–40; Wolf, ZöV, 43 (1983), pp 481–535.
22 See § 166, n 7, and § 167, at n 8ff.
23 Elsewhere the Court referred to ‘the imperative character of the legal obligations incumbent upon the Iranian Government’ (p 41), strongly affirmed the ‘fundamental character’ of the rules in question (p 42), and reiterated its earlier views that the inviolability of diplomatic envoys and embassies was a fundamental prerequisite for the conduct of relations between states (ibid; and § 492, n 1).
28 For a law enacted in the USA in 1988 to curb the use of foreign missions’ premises by persons not entitled to immunity, see AJ, 82 (1988), pp 808–10.
29 Vienna Convention, Art 41.3.
30 How far the receiving state may go in remedying the abuse is unclear. In particular, abuse by the sending state of the inviolability of its mission’s premises probably does not in law involve the loss of the right to inviolability: that right is fundamental to the conduct of diplomatic relations, and while breach of a treaty normally entitles the other party to regard itself as relieved of its obligations under it (see § 649), it is questionable whether this applies to the relevant provisions of the Vienna Convention, which establishes a self-contained regime with its own provisions for the situation in which one party regards another as in breach of the Convention (see § 490, at n 4); in any event, the rule as to inviolability is clearly based in customary international law and is not solely a matter of treaty law. See the discussion of the issues in House of Commons, Report of the Foreign Affairs Committee (1984), paras 89–94, also considering the question whether self-defence might afford a justification in certain circumstances for forcible entry into embassy premises. See also for consideration of possible legal bases for the taking of various countermeasures in the event of abuse of diplomatic privileges and immunities, Herdeger, ZöV, 46 (1986), pp 734–57.
There have nevertheless been occasions when states, believing an abuse to have occurred, have forced an entry into premises which were inviolable in order to put an end to the abuse. In 1927 the Chinese Government, suspecting the Russian embassy at Peking of assisting the revolutionary Chinese communist movement, broke into the embassy and seized arms, munitions and documents; to Russian protests the Chinese Government replied that the results of the search justified the action: see RG, 35 (1928), p 184. In 1973 the Pakistan authorities entered the premises of the embassy of Iraq in Islamabad and found crates containing large quantities of arms and ammunition. The ambassador had been notified immediately beforehand and had not given his consent, but the Pakistan Government had gone ahead ‘in the overriding interests of State security’. The crates were opened in the presence of the ambassador. On the same day an Iraqi diplomatic bag arriving at Karachi airport was opened and found to contain ammunition, and two others opened in the presence of embassy officials also contained ammunition; further, with the ambassador’s permission and in the presence of embassy officials, the house of an attaché at the embassy was searched and also found to contain arms. The ambassador and attaché were declared persona non grata. See The Times, 12 February 1973; the Pakistan Times, 13 February 1973 (for the text of the Note from the Pakistan Government to the Iraq Government); RG, 78 (1974), pp 511–12. In August 1980 Iraqi officials entered the premises of the Syrian embassy in Baghdad, where they discovered a large quantity of arms, as a result of which the staff of the embassy were required to leave within 48 hours: RG, 85 (1981), p 180. See also § 495, n 8, as to the forcible entry by US forces into the Nicaraguan embassy in Panama in 1990.
Short of forcing an entry into embassy premises, receiving states have sometimes taken other measures to bring to an end a situation they have regarded as a serious abuse of a mission’s inviolability. These measures will often include surrounding the premises so as to control — or even prevent — ingress and egress, and may extend to cutting off all communications with persons outside the premises. Such measures are often taken in cases involving refugees taking asylum in embassy premises (see § 495). See eg the extensive measures taken by France in 1987 against the Iranian embassy in Paris (RG, 92 (1988), pp 134–7).
As to the incident in London in 1984 when a policewoman was shot dead by someone firing from inside the Libyan diplomatic mission, which resulted in the expulsion of all personnel in the mission and its closure, and subsequent search of the premises in the presence of a representative of the state charged with the protection of Libyan interests, see House of Commons, Report of the Foreign Affairs Committee (1984), paras 73–105; UKMIL, BY, 55 (1984), pp 459, 471–2; RG, 88 (1984), pp 945–9; Cameron, ICLQ, 34 (1985), pp 610–14. The view was taken that, after the closure of the mission, the premises were only entitled to protection and respect, not to inviolability.
Somewhat different (since no direct abuse of the mission’s inviolability by the sending state is involved) is grossly unacceptable action by others within the mission’s premises, against the authority of the sending state over those premises and which that state is unable to prevent. Such a situation arose in London in 1980 when an armed group seized control of the Iranian embassy, held the staff hostage, and threatened to kill them if the group’s demands were not met. After some days of attempts to resolve the situation peacefully, a special British military unit forced entry into the embassy in an operation in which the members of the group were either killed or captured, the hostages were either killed or released, and much damage was caused to the embassy’s premises. See RG, 84 (1988), pp 1134–5. For legal proceedings arising in the aftermath of this incident see Westminster City Council v Government of the Islamic Republic of Iran  3 All ER 284. For the settlement of claims arising out of this incident see the UK-Iran Exchange of Notes of 6 July 1988 (TS No 65 (1988)). See also, as to the invasion, also in 1980, of the Spanish embassy in Guatemala City after it had been occupied by a group of protesters, RG, 84 (1980), pp 866–9; a similar incident involving the Ecuadorian embassy in Havana in 1981, RG, 85 (1981), p 548; and another involving the Polish embassy in Berne in 1982, RG, 87 (1983), pp 447–8.
31 The case of Nikitschenkow, which occurred in Paris in 1867, is an instance of this. Nikitschenkow, a Russian subject not belonging to the Russian legation, made an attempt on, and wounded, a member of that legation within the precincts of the embassy. The French police were called in, and arrested the criminal. The Russian Government requested his extradition, maintaining that, as the crime was committed inside the Russian embassy, it fell exclusively under Russian jurisdiction; but the French Government refused extradition, and Russia dropped its claim. See also n 6.
32 Thus, Sun Yat Sen, a political refugee from China, living in London, was in 1896 induced to enter the Chinese legation and was kept under arrest there in order to be conveyed forcibly to China. The Chinese envoy contended that, as the premises were Chinese territory, the British Government had no right to interfere. But the latter did interfere, and Sun Yat Sen was released after several days. For the seizure in 1966 of a Chinese national from hospital in the Netherlands and his detention in Chinese diplomatic premises, where he died, see RG, 71 (1967), pp 180–82.
See also § 498, n 8, as to the seizure of certain individuals by or with the connivance of members of diplomatic missions, followed by the attempt to smuggle them out of the receiving state by way of the diplomatic bag.
33 See § 109. In the UK, although the State Immunity Act 1978 permits actions against a foreign state relating to its possession or use of immovable property in the UK, s 16(1) excludes from that provision proceedings concerning a state’s title to, or its possession of, property used for the purposes of a diplomatic mission. See Intpro Properties v Sauvel  1 QB 1019. See also the general exclusion of diplomatic (and consular) privileges and immunities from the operation of the European Convention on State Immunity 1972 (see § 109, n 8), by virtue of Art 32.
34 See, eg Weinmann v Republic of Latvia (1959), ILR, 28, p 385; Jurisdiction over Yugoslav Military Mission (Germany) Case (1962), ILR, 38, p 162; Embassy of the Socialist Republic of Czechoslovakia v Jens Nielsen Bygge-Enterpriser A/S (1982), ILR, 78, p 81; The Century Twenty One (P) Ltd v Union of India, Indian JIL, 27 (1987), p 518 (see also Rao, ibid, pp 482–6). See also § 500, n 4.
35 See Parliamentary Debates (Lords), vol 277, col 196 (20 October 1966); Parliamentary Debates (Commons), vol 19, cols 251–2 (written answers, 5 March 1982). And see, as to US practice, ss 205, 206 of the Foreign Missions Act 1982 (ILM, 21 (1982), p 1125).
1 Although the subject of the right of asylum, which would include diplomatic asylum, was included in the ILC’s provisional list of topics selected for codification, it has not yet begun work on the topic: see § 30, item (9).
2 South American states generally acknowledge the right of foreign ambassadors to afford asylum to political refugees in time of revolution. This right is not based upon a rule of general international law, but merely upon local usage. See Hall, § 52; Westlake, i, p 282; Moore, ii, §§ 291–304; Hackworth, ii, §§ 192, 193; Gilbert, AJ, 3 (1909), pp 562–95; Robin, RG, 15 (1908), pp 461–508; Scelle, RG, 19 (1912), pp 623–34; Moore, Asylum in Legations and Consulates, and in Vessels (1892) (a reprint from the Political Science Quarterly, 7); Tobar y Borgono, L’asile interne devant le droit international (1912); Hurst, Hag R (1926), ii, pp 214–21; Alcindor, Répertoire, ii, pp 34–44; Harv Research (1932), pp 62–6; Genet, i, pp 550–56; Fontes Juris Gentium, Series B, Section 1, vol i (Part 1) Nos 1238–50; Nervo in Académie Diplomatique Internationale, 1932, pp 99ff, Reale, Hag R, 63 (1938), i, pp 511–40; Morgenstern, BY, 25 (1948), pp 236–61; Raestad and others, Annuaire, 43 (1) (1950), pp 133–205; McNair, BY, 28 (1951), pp 194–203. That in practice in times of revolution and of persecution asylum is occasionally granted to refugees, and respected by the local authorities, there is no doubt; but occasional practice does not impair the rule of international law according to which there is no general obligation on the receiving state to grant to envoys the right of affording asylum to individuals not belonging to their suites; see, however, Moore, ii, § 293. See Scott, AJ, 21 (1927), at p 444. The Sixth International American Conference adopted at Havana in February 1928, a Convention on Asylum which laid down that asylum granted to political offenders in legations shall be respected subject to certain specified conditions: AJ, Suppl, 22 (1928), p 158; Hudson, Legislation, iv; BFSP, 133 (1930), p 17. The Convention on Political Asylum adopted by the Seventh International American Conference in 1933 amended the former Convention inasmuch as it forbids the granting of asylum to persons accused of or condemned for common crimes, or to deserters from the army or the navy; Hudson, Legislation, vi, p 607; AJ, 28 (1934), Suppl, p 70; BFSP, 152 (1948), p 231. Article 3 lays down that political asylum, being an institution of a humanitarian character, is not subject to reciprocity and that any person may resort to its protection whatever his nationality. The USA, in an express reservation, refused to recognise or to subscribe to the so-called doctrine of asylum as part of international law. The Tenth Inter-American Conference meeting in Caracas in 1954 adopted a further Convention on Diplomatic Asylum, where asylum is sought for political reasons or for political offences (BFSP, 161 (1954), p 570).
See generally Barcia Trelles, Revista de derecho internacional, 30 (1951), pp 161–80; Moreno Quintana, Derecho de Asilo (1952); Ungerer, Das diplomatische Asyl in deutschen vertretungen Latin Amerikas (1955); Zarate, El Asilo en al Derecho Internationale Americano (1958); Vieira, Derecho de Asilo Diplomático (1961); Bolesta-Koziebrodzki, Le Droit d’asile (1962); Guatemala, El Asilo Diplomático (1963); Ronning, Diplomatic Asylum (1965); Francioni, Asilo Diplomático (1973); Riveles, Human Rights Quarterly, 11 (1989), pp 139–59.
3 A somewhat special case occurred in the 1980s when large numbers of nationals of the German Democratic Republic, for whom emigration was mostly illegal, virtually invaded the embassies of the Federal Republic of Germany in various East European states, particularly in Czechoslovakia, in order to seek permission to live in the Federal Republic (in the eyes of whose authorities those persons were German nationals, with rights as such in the Federal Republic: see § 383, n 3). Beginning in about 1984, such incidents grew in scale and frequency until, in 1989, they reached a point at which at one time over 1,000 people were camped in the grounds of the Federal Republic’s embassy in Prague. With the political changes which followed later that year, as a result of which emigration from the German Democratic Republic became easier, the need for a circuitous route through embassies of the Federal Republic ceased. See RG, 88 (1984), p 895; 89 (1985), pp 391–2; 94 (1990), pp 123–4; and see Hofmann, ZöV, 50 (1990), pp 1–35. Somewhat similar incidents occurred in 1990 when large numbers of Albanians gained entry into a number of embassies in Tirana, seeking refuge abroad.
4 ICJ Rep (1950), at p 274. See also § 496.
5 Such as the treaties concluded between Latin American states, and referred to at n 2. And see § 496.
6 As to the custom of ‘bast’ in Persia, see Parry, BDIL, 7, pp 923–7; Satow, pp 114–15.
7 In times of civil disorder it may be difficult to say who are the lawful territorial authorities to whom delivery of the refugee should be made.
8 Thus, in 1906 the Belgian police surrounded the Chilean embassy in Brussels when the son of the chargé d’affaires, who was accused of murder, took refuge there: see RG, 14(1907), p 159. It may not always be clear whether the purpose of surrounding the embassy is to coerce the envoy into expelling the refugee from the embassy or merely to ensure that when and if he leaves the embassy he will not escape arrest. The measures taken may sometimes involve more serious and direct forms of pressure than merely posting soldiers around the embassy premises. See, eg the measures adopted by France in 1987 against the Iranian embassy in Paris (RG, 92 (1988), pp 134–7) to secure the departure from it of an Iranian without diplomatic status who was wanted pursuant to an order of a French court; and the measures adopted by the USA, during its intervention in Panama in 1989 (see § 130, n 14), to secure the departure of the former Panamanian leader, General Noriega, from the embassy of the Holy See in Panama City, which included surrounding and floodlighting the embassy, controlling ingress and egress, and playing music loudly through amplifiers in the immediate vicinity of the embassy (RG, 94 (1990), p 495). As part of their earlier efforts to trace General Noriega and his supporters, US forces surrounded the Nicaraguan and Cuban embassies in Panama City and, on 29 December 1989, US forces forced an entry into the residence in Panama City of the Nicaraguan ambassador. The US Government apologised and acknowledged that this had been a mistake. Nevertheless, Nicaragua retaliated by requesting a number of US diplomats in Managua to leave the country within three days; on 8 January 1990 the OAS voted 16–0 to condemn the US action; but a debate in the Security Council on 17 January did not result in the adoption of any resolution.
9 For an example of seizure by local authorities of a person taking refuge in embassy premises, see, as to an incident involving the Venezuelan embassy in Uruguay, Almeido de Quinteros v Uruguay (1983), ILR, 79, p 168. See also the invasion of the French embassy in Monrovia by Liberian soldiers to seize a refugee: RG, 85 (1981), pp 156–8); and § 494, n 15.
10 The humanitarian basis for asylum defies definition in advance; it has affinities with humanitarian intervention (see § 131).
11 A number of examples are cited by Morgenstern, BY, 25 (1948), p 241, and Stuart, American Diplomatic and Consular Practice (2nd ed, 1952), pp 245–7; see also the literature cited at n 2, where many other instances are mentioned. Recent instances of states affording asylum in diplomatic premises include the grant of asylum by the USA to Cardinal Mindzenty in Hungary from 1956–71; by the UK to Mr Bing in Ghana in 1966; by Sweden and a number of other states (but not including the UK) to many hundreds of refugees in Chile after the coup in 1973 which overthrew President Allende, many of the refugees staying in the embassies until the Government of Chile, in January 1975, announced a general safe-conduct for their departures (AFDI, 20 (1974), pp 1031, 1033–5; RG, 78 (1974), pp 765, 777–81, and 79 (1975), pp 782, 788); by France when, in March and April 1975, when events in Cambodia led to several hundred people (French and non-French nationals) seeking refuge in the French embassy in Phnom Penh, from where their expulsion was ordered by the Cambodian authorities at the end of April (RG, 79 (1975), pp 1105, 1107–8); by the USA in giving refuge in the US embassy in Moscow to seven members of a Pentecostalist sect from 1978 to 1983 (The Times, 27 June 1983); by the French embassy in Cuba to a refugee who stayed for five months in 1986–7 (RG, 91 (1987), pp 108–9, 934–5); by the embassy of the Dominican Republic in Haiti to a refugee who stayed in the embassy for over three months (RG, 93 (1989), p 678; by the Venezuelan embassy in Nicaragua to a refugee who stayed for some ten years (RG, 93 (1989), pp 684–5); and by the US embassy in Peking to a leading dissident, Professor Fang Lizhi, and his wife, who both took refuge there after the massacre by Chinese troops of protesters in Tianenmen Square in June 1989 and stayed until June 1990, when he was allowed to leave for the UK. As to diplomatic asylum during the Spanish Civil War 1936–9, see Bestieu, Droit d’asile dans les ambassades et légations au cours de la guerre d’Espagne (1936–1939) (1942); Thomas and Thomas, in The International Law of Civil War (ed Falk, 1971), pp 148–52.
For the attitude of the UK to such questions of asylum see UKMIL, BY, 55 (1984), pp 450–51. As to France, see RG, 75 (1971), p 850, and 81 (1977), p 284; Dupuy, AFDI, 22 (1976), pp 743–55; and AFDI, 27 (1981), pp 914 and 30 (1984), p 953, suggesting a distinction between the grant of refuge (a matter of fact) and of asylum (a matter of law). As to the USA, see US Digest (1974), pp 115–18.
12 Asylum case between Colombia and Peru, ICJ Rep (1950), p 187. See also the resolution adopted in 1950 by the Institute of International Law at Bath: Annuaire, 43 (1950), ii, p 377. Article 3 (2) lays down that ‘asylum may be granted to every individual whose life, person or liberty are threatened by violence emanating from local authorities or against which local authorities are manifestly not in the position to offer protection, which they tolerate or to which they incite.’
13 ICJ Rep (1950), p 284.
15 ICJ Rep (1950), p 279. There are many examples of asylum being afforded in diplomatic premises, followed by negotiations leading to the grant of a safe-conduct for the refugee out of the receiving state, or even sometimes leading to the receiving state agreeing not to take punitive action against him on his departure from the embassy. See, eg the asylum granted by the French embassy in the Central African Republic in 1982 (RG, 86 (1982), p 805); and the asylum granted by the Apostolic Nunciature in Chile in 1984 (RG, 88 (1984), p 684).
16 Cf § 402, as to the similar restraints which apply where territorial asylum is granted.
1 As, eg in the Havana Convention of 1928 and the Caracas Convention of 1954, referred to at § 495, n 2.
3 The Court held that the grant of asylum in the case before it did not arise out of an ‘urgent case’ in the meaning of the treaty, seeing that there was no question of sheltering the refugee in question, who was prosecuted by the authorities for revolutionary activity, from violent and disorderly action of irresponsible sections of the population.
4 ICJ Rep (1951), p 83. It is arguable that the province of the judicial function is to decide not only between the existence of a right and the absence thereof, but also to determine which of two valid legal positions is to prevail. For an instructive analysis of some aspects of the case see Fitzmaurice, BY, 27(1950), pp 31–41. In cases of this description a substantial difficulty confronting an international court is the necessity of interpreting against the background of general international law, including in particular that relating to prohibition of intervention, an institution peculiar to the political climate and tradition of a particular region of the world. For a discussion of this case see also Barcia Trelles, Revista Española, 3 (1950), pp 753–801; Alona Evans, AJ, 45 (1951), pp 755–62; Morgenstern, LQR, 67 (1951), pp 362–82; Fitzmaurice, BY, 27 (1950), pp 31–41, and 32 (1955–56), pp 77–8; Green, ILQ, 4 (1951), pp 229–39; van Essen, ICLQ, 1 (1952), pp 533–9.
1 The head of a mission is entitled to use the sending state’s flag and emblem on his means of transport: Vienna Convention, Art 20.
2 Ibid, Art 22.3.
Particular problems have arisen in relation to embassy bank accounts, especially where the account covers not just the operating costs of the embassy but also other transactions of the sending state or its agencies, perhaps for commercial purposes. In view of the developments in the law of sovereign immunity whereby such immunity is not available to a state in relation to its commercial activities (§ 110), it would seem that an embassy account operated solely for commercial purposes would not be immune from normal legal procedures applicable to it, whereas an embassy account used solely for its diplomatic purposes would be immune from such process. Accounts used for both kinds of purposes are in an uncertain position, which may have to be settled in the light of the particular circumstances. The House of Lords has held such a ‘mixed’ account to be entitled to immunity, since it held that the requirement for loss of immunity was that the account be shown to be earmarked solely for commercial transactions: Alcom Ltd v Republic of Colombia  AC 580, on which see Crawford, BY, 55 (1984), pp 340–43; Fox, ICLQ, 34 (1985), pp 115–41; Ghandhi, MLR, 47 (1984), pp 597–602. See also the US Note of 25 March 1987 to all missions in Washington, AJ, 81 (1987), pp 642–3; In the Matter of the Republic of the Philippines, AJ, 73 (1979), pp 305, 703; Republic of ‘A’ Embassy Bank Account Case (1986), ILR, 77, p 489; Benanmar v Embassy of the Democratic and Popular Republic of Algeria, AJ, 84 (1990), p 573; and § 109, n 30 (second para).
3 Ibid, Art 24. It has been held that ‘espionage reports’ removed from the Russian embassy in Ottawa by one of its employees could properly be produced in court for the purposes of evidence: see R v Rose, AD (1946), No 76, and, on appeal, as R v Lunan, AD (1947), No 72; also Cohen in BY, 25 (1948), pp 404–14. But archives of a diplomatic mission have been held exempt from discovery procedures, even in litigation for which the state in question was not entitled to immunity: Renchard v Humphreys & Harding, Inc, AJ, 69 (1975), p 889. See also Fayed v Al-Tajir  2 All ER 396, in which an internal embassy document was held to enjoy absolute privilege in proceedings arising out of an alleged libel in it: and see Hutchinson, BY, 58 (1987), pp 438–47.
The meaning of ‘inviolability’ in relation to documents was much discussed in Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd (No 2)  1 WLR 16, particularly in the judgments delivered in the Court of Appeal and House of Lords. ‘Inviolability’ was held to protect archives not only from the authorities of the receiving state but also from use in legal proceedings by private parties, but not to protect documents which had already been communicated to a third party by a person acting with appropriate authority. Although the documents in issue in the case were those of an international organisation (the International Tin Council), much of the discussion assumed a close relationship between the inviolability accorded to such an organisation’s archives and that accorded to those of a diplomatic mission.
4 Vienna Convention, Art 30.2. The same inviolability applies also to the property of diplomatic, administrative and technical staff of a mission, and their families: ibid, Arts 30.2 and 37.1 and 2. See The Amazone  P 40 (concerning a yacht); and Re Ledoux, AD (1943–45), No 75 (a bank account). As to a diplomatic agent’s property it may be noted that while it is inviolable, the furnishings and other property on the premises of the mission and the means of transport of the mission are stated to be immune from search, requisition, attachment or execution only. As to the residence of a diplomatic agent, see § 494, n 6.
1 As to the obligation of third states to grant the same freedom, protection and inviolability as the receiving state is bound to accord, see Art 40.3 and 4 of the Vienna Convention.
2 Ibid, Art 27. Note also Arts 37–8 of the International Telecommunications Convention 1952. On 17 April 1944, the British Government announced, as a precautionary measure prior to the invasion of the Continent, the suspension of certain diplomatic privileges and facilities such as transmission or receipt of diplomatic bags unless censored, the departure of official couriers or consular or diplomatic representatives or their staffs. The measure did not apply to the USA, Soviet Russia, and the fighting dominions. It was removed on 19 June 1944. For comment see Schwelb, MLR, 7 (1944), pp 223–7. See also Lee, Consular Law and Practice (2nd ed, 1991), pp 440–2. In January 1973 the Nigerian Government announced that, as part of their measures to prevent the smuggling into Nigeria of currency during the period when Nigeria was changing to a decimal currency, for a period of six weeks diplomatic and consular packages coming into Nigeria would not be immune from search. The measure was stated to be without prejudice to diplomatic and consular privileges and immunities. Inspection of packages was, wherever possible, to be conducted in the presence of the diplomatic agent concerned or his representative. Nigeria introduced a similar measure, again at a time of currency change, in 1984: RG, 88 (1984), p 958 (also listing several other states which have occasionally introduced similar measures for those reasons).
3 Radio interception of messages to and from diplomatic missions, which does not hinder the transmission of the messages themselves, is not contrary to international law. Reports in 1987 that messages from the Irish embassy in London had been intercepted in this way did not prompt any official protest from the Republic of Ireland: RG, 91 (1987), pp 953–4.
4 As to diplomatic couriers, see § 514.
5 It may be noted that this language falls some way short of affording the bag full inviolability; and, in particular, electronic scanning of a bag need not involve either its opening or any delay to the bag.
Incidents involving the inviolability of the diplomatic bag have occurred from time to time. In 1893 Spanish customs officials seized the diplomatic bag of the courier of the French embassy at Madrid and detained him for 24 hours; France protested and the official responsible was dismissed: RG, 1 (1894), p 60. In 1918 the USA apologised to the Ecuadorean embassy in Washington for the censoring of Ecuadorean diplomatic correspondence, and instituted disciplinary action to prevent a recurrence: Hackworth, iv, p 618. For an incident involving the x-raying and opening of a French diplomatic bag by US authorities, see RG, 93 (1989), p 671; and see RG, 87 (1983), pp 193–4. Where abuse of the inviolability attaching to the diplomatic bag is suspected it has sometimes happened that the Ministry for Foreign Affairs of the receiving state has authorised the opening of the bag in the presence of the courier (on this question see especially Cahier, Le Droit diplomatique contemporain (1962), pp 213–15; and see § 494, n 30, as to arms found in the Iraqi diplomatic bag at Karachi airport in 1973). The Vienna Convention does not authorise this practice in the case of diplomatic bags; the position as regards the consular bag is different, see § 550, nn 26–28. Abuse of the diplomatic bag’s inviolability frequently causes controversy in time of war. Thus during the First World War, couriers in the service of the German legations in Norway and Switzerland carried explosives concealed in their sealed luggage. See also Stuart, American Diplomatic and Consular Practice (2nd ed, 1952), pp 239–41; and Hackworth, iv, pp 631–2; Denza, Diplomatic Law (1976), pp 125–8; Lee, Consular Law and Practice (2nd ed, 1991), pp 440–2; Higgins, AJ, 79 (1985), pp 641, 647–9.
6 Vienna Convention, Art 27.3 and 4.
7 As to an incident in 1984 involving the use by the Soviet Union of a lorry as a ‘diplomatic bag’, see RG, 89 (1985), pp 179–81.
8 As to the attempt in 1964 to smuggle a person out of Italy in a trunk labelled ‘diplomatic mail’ and addressed to the Foreign Ministry of the United Arab Republic, see RG, 69 (1965), pp 470–74, and 70 (1966), p 154; BPIL (1964-II), p 229. For a similar incident occurring in the UK in 1984, in relation to the abduction of Mr Dikko, see UKMIL, BY, 55 (1984), pp 493–94, 497–98, 499–500; House of Commons, Report of the Foreign Affairs Committee (1984), para 106; RG, 89 (1985), pp 157–9; Akinsaya, ICLQ, 34 (1985), pp 602–9; Cameron, ibid, pp 610, 614–15. And see, for later proceedings arising out of this incident, R v Lambeth Justices, ex parte Yusufu  TLR 114; UKMIL, BY, 56 (1985), pp 328–31, 431–2.
9 ILC Rep (41st Session, 1989), paras 17–72.
10 GA Res 44/36 (1989) and 45/43 (1990).
11 As regards the diplomatic courier, see § 514.
12 Article 1. The omitted words bring consular posts, and delegations of states to international organisations, into the network of organs to, from and between which the bag may be sent.
13 Consular bags, and bags of delegations to international organisations, are included in the definition of ‘diplomatic bag’.
14 The exemption of the diplomatic bag from examination through electronic or other technical devices, which does not appear in Art 27.3 of the Vienna Convention on Diplomatic Relations, is controversial and has been objected to by many states. The special provision in draft Art 28.2, allowing for the opening of the bag in the presence of a representative of the sending state, or, if that is refused, its return to its place of origin, only applies to the consular bag.