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it ever was) to assault a foreign envoy (see Lyons, BY, 31 (1954), p 302): and the Diplomatic Privileges Act 1708 (now repealed), passed in consequence of the Russian ambassador in London having been arrested for a debt of £300, has always been considered as declaratory of the existing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.

3  See § 513.

4  See § 494.

5  See § 497.

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.

11  See § 424.

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 [1983] 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 [1983] QB 1019. In Agbor v Metropolitan Police Commissioner [1969] 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 [1969] 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 [1986] 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 [1990] 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.

11  See § 495.

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).

24  At p 31.

25  At p 33.

26  At pp 35–6.

27  At p 40.

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 [1986] 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 [1983] 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.

14  Ibid.

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.

2  ICJ Rep (1950), p 274.

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 [1984] 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 [1987] 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) [1988] 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 [1940] 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 [1985] 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.