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


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

Eileen Denza

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Diplomatic immunity — Diplomatic missions — Diplomatic relations — Human rights remedies

(p. 1) Introduction

The Vienna Convention on Diplomatic Relations codifies the rules for the exchange of embassies among sovereign States. These rules protecting the sanctity of ambassadors and enabling them to carry out their functions are the oldest established and the most fundamental rules of international law. The Convention is a cornerstone of the modern international legal order.

When the first edition of Diplomatic Law was completed the Vienna Convention had been in force for eleven years, and 112 States were Parties. Even then it was apparent that the Convention had received an overwhelming vote of confidence from the international community. The fourth edition of Diplomatic Law is being completed fifty-one years after the Convention’s entry into force and 190 States are Parties. This is close to the entire number of independent States in the world. The Vienna Convention has become a universal Convention, and its provisions, even where at the time of their adoption they clearly marked progressive development of custom or resolved points where practice conflicted, are now regarded as settled law. There have been onslaughts on the protected status of diplomats, from those asserting that it cannot be justified in the face of abuse of immunity and from those claiming that it must give way when it appears to conflict with claims to access to justice or to human rights. In recent years diplomats have become conspicuous and highly vulnerable targets for terrorist attack. In the face of these attacks the Convention has survived unscathed.

The Vienna Convention on Diplomatic Relations has also continued to be used as a point of reference in the development of related areas of international law. Many of its provisions were adopted, with appropriate modifications, in the Vienna Convention on Consular Relations, and cases on the construction of particular phrases in one of the two related Conventions are often cited as authorities in the context of the other. With very few modifications, its provisions were adopted in the New York Convention on Special Missions. It has been used extensively to determine the treatment to be accorded to Heads of State in their personal capacity and to High Officers of and representatives to international organizations. As international rules on state immunity have developed on more restrictive lines there has always been a saving for the rules of diplomatic and consular law and an increasing understanding that although these sets of rules overlap they serve different purposes and cannot in any sense be unified.

There are a number of reasons why the Vienna Convention has been so successful in winning both formal support and a remarkably high degree of observance. First, the rules of law codified in the Convention had long been stable. By the time they were described by Vattel in Le Droit des Gens, published in 1758, they had developed as far as they could without the assistance of international agreements, and they remained constant for the following 200 years. Diplomatic law in a sense constitutes the procedural framework for the construction of international law and international relations. It guarantees the efficacy and security of the machinery through which States conduct diplomacy, and without this machinery States cannot construct law, whether by custom or by agreement on matters of substance. It was therefore entirely natural that as the modern legal order of sovereign States grew up, the rules for the exchange and the treatment of envoys between them were (p. 2) the earliest to be firmly established as customary law. Subsequent developments in the functions of governments, the conduct of international relations, in trade, travel, and communications altered in only marginal respects the main functions of diplomatic missions—to represent the sending State and protect its interests and its nationals, to negotiate with the receiving State, to observe, and to report. The basic rules which enabled those functions to be carried out have therefore continued largely without change.

Secondly, reciprocity forms a constant and effective sanction for the observance of nearly all the rules of the Convention. Every State is both a sending and a receiving State. Its own representatives abroad are in some sense always hostages. Even on minor matters of privilege and protocol, their treatment may be based on reciprocity. For the most part, failure to accord privileges or immunities to diplomatic missions or to their members is immediately apparent and is likely to be met by appropriate countermeasures. Only over the question of communications does this not apply. Sophisticated developments in electronic technology are not available equally to all States, and it has been in regard to communications that there have been conflicts of interest between States as well as widespread violation of the principles of the Convention. In the last few years there is more publicly available evidence of this disregard, but there is no sign of any willingness by States to modify the underlying rules or on the other hand to desist from intercepting each others’ communications.

Thirdly, those in the International Law Commission who began the preparatory process which led to the Convention, as well as those who represented their governments at the Vienna Conference, never lost sight of the need to find solutions which would be acceptable to governments and to national Parliaments as a whole. The long dialogue between the International Law Commission, national governmental experts, and the Sixth Committee of the General Assembly was characterized not by the driving towards any political objective but by attentive listening to criticism and a search for realistic compromise. From the careful Commentary produced by the Commission on its draft articles and the published records of its debates it is usually easy to cast light on the background, meaning, and purpose of the final provision. The records of the Vienna Conference are far less helpful in showing the general understanding or purpose of individual amendments. But they do show that on a number of difficult occasions where a controversial solution could have been forced through by a vote, delegates stepped back and remembered that their first duty was to negotiate a text which could be widely supported. The question of the right to install and use a wireless transmitter on embassy premises was a case in point. The negotiators of the Vienna Convention did not forget that the international legislative process cannot be controlled by majority vote but depends ultimately on ratification by national Parliaments looking to national self-interest. Later negotiators of other law-making conventions (in particular the Convention on Special Missions) were not so successful in this respect. The long process by which the new United Nations Convention on Jurisdictional Immunities of States and their Property was prepared was similar in terms of care for national interests and realism, and gives some ground for optimism that this Convention may over time gain widespread acceptance by the international community.

Progressive development of the law

The Vienna Convention is a comprehensive formulation of the rules of modern diplomatic law. None of the earlier attempts at multilateral codification—the Vienna Regulation of 1815 regarding the classes and precedence of heads of mission, the (p. 3) Resolutions adopted by the Institute of International Law in 1895 and 1929, the Harvard Draft Convention on Diplomatic Privileges and Immunities of 1932—had covered the field so thoroughly. Almost every point was covered on which a legal rule existed or on which there was advantage in bringing into harmony divergent rules of state practice. There are a few matters only—such as droit de chapelle, embassy bank accounts, diplomatic asylum—omitted for various reasons from its provisions. On diplomatic asylum it is unlikely that specific rules going beyond those of inviolability of mission premises and the duty of diplomats to respect local laws and regulations could have been formulated by the Vienna Conference to the satisfaction of the majority of States. On embassy bank accounts, cases in many jurisdictions have built up a clear consensus now crystallized into customary law.

Six provisions of the Convention may be singled out as having been significant developments of the previous customary international law.

Article 22 established without any specific exception the inviolability of mission premises. The Convention leaves it in doubt exactly when inviolability begins and ends. But the clear description of the implications of inviolability, and the provision that no pretext of public emergency or abuse by the embassy of its immunity may justify entry by the authorities of the receiving State were crucial developments in the law. In spite of increases in mob demonstrations and violence directed at embassies, as well as in terrorist seizures of embassies themselves, this prohibition has remained central.

Article 27 sets out comprehensive rules for the protection of all forms of diplomatic communication—the most important to the functioning of a diplomatic mission of all its privileges and immunities. As with diplomatic premises, the Convention altered the previous customary law which had permitted supervised search of suspect diplomatic bags, with the sending State retaining the option of returning the challenged bag. The Convention provided simply that the diplomatic bag ‘shall not be opened or detained’. The newer States seemed to gain a victory in the requirement that the installation of a wireless transmitter requires the consent of the receiving State, and this question was one of the most controversial at the Vienna Conference. But the assertion in the Vienna Convention of the right of the sending State to communicate by ‘all appropriate means’ was in the longer term probably more significant. Methods of communication have proliferated, undetected interception has become easier, so that the basic principle of the right to free communication is even more important as a guide to lawful conduct.

Article 31 finally settled what were the exceptions to the immunity of a diplomat from civil jurisdiction. The functional approach to immunity is apparent in the establishment of exceptions relating to the diplomat’s private holding of real property in the receiving State and his professional or commercial activities there. The first of these exceptions has given rise to uncertainty and to much litigation over its scope. But it does strike a balance between the need to protect a diplomat from frivolous or malicious lawsuits which could impede his effectiveness in his post and the conflicting need to minimize abuse of diplomatic immunity where it is unjustified or might leave a claimant with no possible forum to resolve disputes over land. Article 31 also made an important change in the law in giving diplomats exemption from the duty to give evidence as a witness.

In Article 34 the functional approach to privileges is also evident in all the exceptions established to the basic principle of exemption from taxes. These exceptions fall into three categories—matters unrelated to a diplomat’s official activities or to his normal life in the receiving State, dues which are not truly taxes but charges for services rendered, and taxes where refund or exemption would be administratively impractical. The Convention (p. 4) established a clear framework which national authorities must apply to their own tax laws. Generally speaking it relieves the migrant diplomat and his family from the need to grapple with the tax regimes of successive host States while minimizing the possibility of his profiteering from extraneous activities or investments.

Article 37 of all the Convention provisions proved the most difficult to resolve in view of the great diversity of approach in different States to the treatment of junior staff of diplomatic missions and families. The only rule which could be said to be previously established customary law was the immunity of administrative and technical staff in respect of official acts. Even the terminology for the classification of junior members of a mission was extremely varied. Article 37, once again rigorously applying the principle of efficient performance of the functions of missions, limited the civil immunity of administrative and technical staff to acts performed by them in the course of their duties, while allowing them full immunity from criminal jurisdiction. Service staff were accorded an absolute minimum of privilege and immunity. For States which, like the United Kingdom and the United States, under their previous domestic law accorded full privileges and immunities to all members of the ‘ambassador’s suite’, Article 37 drastically cut the armies of privileged persons in their capitals who by sheer numbers as well as by occasional irresponsibility threatened to bring into disrepute the entire system of diplomatic immunity. For some States which accorded only immunity for official acts to all subordinate staff, it would lead to increased privileges and immunities and was strongly resisted—though only a very few States made reservations in respect of the regime to be accorded to administrative and technical staff. For all States Article 37 offered a clear compromise rule to replace the previous confusion.

Finally, Article 38 debarred from all privileges and immunities (beyond the minimum of immunity for diplomats in regard to their official acts) nationals and permanent residents of the receiving State. The exclusion of permanent residents along with nationals of the receiving State was a new rule for most States and the meaning of the words was not made clear by the negotiators. The loss of privileges and personal immunities by permanent residents was, however, fully justified on grounds of principle. Nationals and permanent residents of the receiving State are much less likely to be career diplomats and the justification for according them extensive tax and customs privileges as well as exemption from social security obligations is correspondingly weaker. In general, they are unlikely to be harassed for political motives. In their case the alternative remedies which to some extent compensate for immunity from jurisdiction—the possibility of action in the sending State or recourse to the sending State itself—are much less likely to be effective. So long as nationals and permanent residents of the receiving State are accorded immunity for their official acts, their effectiveness in carrying out their functions is safeguarded.

Of these six provisions of the Vienna Convention which have been singled out as the clearest cases of progressive development of the law, the first two increased for the benefit of diplomatic missions themselves the degree of immunity over what was previously accorded. In the latter four provisions on the other hand, all of which relate to individual members of missions, the effect in most States was to decrease the privileges and immunities enjoyed by diplomats, other members of diplomatic missions, and their families. The unifying thread which ran through all these changes was the attempt to ensure, in the words of the Preamble to the Convention, ‘that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States’. The (p. 5) functional approach was not regarded by those who prepared the Convention as merely an academic rationale—it guided them at every crucial point. The general effect was to tighten the protection given to the mission itself—its premises, communications, property, and archives. On the other hand, it reduced the occasions when privilege or immunity could be invoked in regard to essentially private activities of individuals, and it reduced the protection and privileges of junior members of the mission and of those who belonged to the receiving State. In these cases it was decided that possible abuse by mission staff of their privileges and immunities was more likely than their harassment for political motives.

How the Convention regime has changed

Revisiting the Vienna Convention on Diplomatic Relations for later editions of this book, the most striking impression is how it has stabilized the law. Reservations to the Convention—almost all to the provisions precluding search or detention of the diplomatic bag or to the privileges and immunities given to administrative and technical staff—are of very limited importance. In some cases they have been formally withdrawn, in others they have simply never been applied, and in others the Convention rules are applied ostensibly on the basis of reciprocity. To be sure of the meaning of many of its provisions it is still important to go back to the customary law, and many of the ambiguities in the Convention have been clarified by consistent state practice now hardened into new custom. Examples include the meaning of the terms ‘members of the family forming part of the household’ and ‘permanently resident in the receiving State’. For most purposes the Convention has become the law. There were in earlier years many cases where national courts based their decisions almost entirely on the Convention even where one or other of the States involved was not yet a Contracting Party, and the same has been true of intergovernmental disputes. Reciprocity is still of great practical importance—but the latitude given by the Convention for restrictive applications, for custom, and for reciprocal agreements seems to have been used mainly as a method of forcing deviant States back into line with the Convention rules. Although many States wished to preserve more favourable treatment already extended on a bilateral basis, there is very little evidence of Article 47 being used as the basis for a new network of special regimes. In this respect diplomatic law is very different from consular law or the law relating to special missions or to international organizations.

The second point which can be made is that the Convention has proved remarkably resilient to external attacks. In the United Kingdom and in the United States in particular, the effect of a small number of appalling or bizarre instances of abuse of diplomatic immunity during the 1980s, and of widespread resentment of the flouting by diplomats and other privileged persons of parking restrictions, was a cry for revision of the Convention or for new ways of combating perceived abuse. It would indeed have been possible, had the political will been generally present, to have achieved some reduction of the protection given, in particular, to the diplomatic bag. But Western governments were too well aware of the overall need for protection of their diplomats and their missions abroad against terrorism, mob violence, and intrusive harassment from unfriendly States to dispense with the essential armour provided by the Vienna Convention. Their response was to tighten administrative control and supervision of foreign missions, to use the remedies already provided in the Convention more vigorously even where this carried (p. 6) short-term political disadvantages, to invoke countermeasures on a basis of reciprocity, and to build up coalitions to apply pressure on States flouting normal rules of international conduct. Gradually these measures could be shown to have achieved some results, the instances of abuse of immunity came to be seen in a wider context, and the cries against diplomatic immunity died away. The Convention was left intact and in truth strengthened by the systematic re-examination it had undergone. Even in regard to diplomatic bags and couriers it was ultimately accepted that there was no general will to modify the Convention rules or to inflate the essential immunities already given to diplomatic couriers. In the past few years the increase in violence in many States has made the need for special protection even more obvious, but the result has often been the closure of permanent missions and the use of special defensive measures such as the use of private security firms and barriers preventing normal access to embassies.

In recent years there have also been claims that immunities—in particular those of Heads of State or Ministers which are less clearly delineated than those of diplomats—must cede place to human rights such as the right of victims to access to justice. These rights are said to have higher value as ius cogens. The Pinochet and Arrest Warrant cases raised as many questions over this conflict as they resolved. The clear description in Article 3 of the Vienna Convention of the functions of diplomatic missions, as well as judicial pronouncements emphasizing the unchallenged validity of rules of personal immunity for those still in office have, however, ensured that the impact of this challenge on the Convention regime has been very limited. In most countries it is accepted that the protection of human rights and the monitoring of human rights performance is central to diplomacy and properly within the diplomatic functions of observation and protection, so that—as noted below—the prohibition in Article 41 on diplomats interfering in the internal affairs of the receiving State is gradually becoming more circumscribed.

There is now a wealth of case law on the interpretation and application of many provisions of the Convention. The availability of so many of these cases in the International Law Reports has been of enormous importance in assessing the Convention as it now stands. Among the most interesting are those cases—particularly in the United States and in Australia—in which national courts have tried to balance the rights of embassies to protection against intrusion or damage, disturbance of their peace, and impairment of their dignity with the often conflicting human rights or constitutional rights of demonstrators to freedom of assembly and freedom of speech. Other important cases illustrate the way in which issues of diplomatic and of sovereign immunity are increasingly intertwined. More and more often, as state immunity has been cut back by national legislation reflecting the changing role of the State and the changing requirements of international law, plaintiffs find that it is profitable to sue an ambassador or a diplomat and in the same proceedings also to sue his sending State. These cases show how the differing reasons for diplomatic and state immunity may lead to different answers to the question of the jurisdiction of a national court. Some parts of this Commentary on the Convention have been completely rewritten so as to take account of the changing law on state immunity—though this book does not pretend to address questions of state immunity except where they are inextricably intertwined with the interpretation of the Vienna Convention. The adoption and signature by a substantial number of States of the UN Convention on Jurisdictional Immunities of States and their Property has helped to clarify some uncertainties in regard to the Vienna Convention on Diplomatic Relations. One area where this is so is that of employment disputes brought by members of a mission (p. 7) or private servants of diplomats against the sending State—numerically the largest class of cases in national courts raising questions of state immunity.

Evidence of recent state practice on the Convention in many capitals is now widely available in national journals, monographs, and in the press. The first edition of Diplomatic Law as it admitted was heavily weighted in favour of UK practice. Since the United Kingdom was an early and active participant in the Convention regime faced with the need to formulate its interpretations from scratch, and the book was written from within the Foreign and Commonwealth Office in London by one of the labourers in this task, this bias was unsurprising. The second, third, and fourth editions range much more widely—but it is remarkable how frequently the UK practice established early in the life of the Convention has been broadly confirmed or followed by other States which were later in ratifying or acceding to the Convention. The UK approaches to the definition of ‘member of the family forming part of the household’ and of ‘permanently resident’, to take two examples, have been closely followed elsewhere. There is now extensive and valuable material on US practice publicly available through cases, through the Digest of United States Practice in International Law, and the American Journal of International Law. The author was most fortunate in the assistance provided directly by the State Department and the Office of Foreign Missions in confirming and supplementing this material for later editions. Internet sources, in particular the material now available on the State Department website and websites of other ministries of foreign affairs, have also been of great value in preparing the third and fourth editions.

The practice illustrates how very limited are the occasions when even under the most extreme provocation States have deliberately infringed or condoned the infringement of inviolability of premises, archives, or diplomatic bags. It is submitted that insofar as these few instances can be justified it must be on a basis of self-defence or of the overriding sanctity of human life. In the most fundamental aspects, this situation has not changed since the sixteenth century, when against the background of profound conflicts of religion and of numerous plots by ambassadors to bring about the overthrow of the sovereign to whom they were accredited, those sovereigns resisted advice from lawyers that treason justified exceptions to the inviolability of those ambassadors and confined themselves to expelling them. The longer term interest in the sanctity of envoys even then outweighed the short-term interest in trial and punishment. The detention of the US hostages in Tehran in 1979 and 1980 was a terrible aberration from this general pattern, and later incidents have shown Iran continuing to be cavalier in its approach to its Convention responsibilities. There is however nothing in the practice of other States to suggest that these events altered the law in any way. Threats to the security of diplomats and embassies are now so frequent and serious as gravely to impede their proper functioning. When embassies are forced to retreat into fortified bunkers and to limit access by the public, ambassadors cannot act effectively as the eyes and ears of the sending State. These threats do not, however, come from governments and they do not demonstrate change in compliance by States Parties to the Convention.

Study of recent practice shows, however, that there is now much greater flexibility among States in how they conduct their diplomatic relations. A relatively new feature is that most States maintain diplomatic relations with the majority of those other countries in the world which they recognize as States. Formerly States did not in general establish diplomatic relations with one another unless they sought to send and receive permanent missions. The modern practice by contrast is that establishment of formal diplomatic (p. 8) relations, if it does not actually constitute recognition of a new State, follows hard upon such recognition. The establishment of diplomatic relations is, however, not necessarily followed by the establishment of permanent missions. Almost all States are under constraints as to their expenditure which preclude the establishment of full embassies in all the States with which they have diplomatic relations. The Convention offers a range of more limited alternatives—multiple accreditation under Article 5 or Article 6, and protection of interests under Article 45 where relations have been broken or under Article 46 where they may never have been established. Virtual embassies are a new possibility for smaller States. There is increased use of all these options. When relations deteriorate it is increasingly the practice to recall an ambassador for consultations or to recall the entire mission rather than to proceed to a formal breach of diplomatic relations. For all these situations the Convention makes clear provision, and its flexible framework allows a full mission to be set up or enlarged quickly. Flatpack missions designed for rapid response to emergency situations have become part of the new diplomacy. States share premises and information in order to cut costs and to function more effectively.

Two provisions of the Vienna Convention have been exceptions to the generally high standard of compliance. The first is Article 26 requiring a receiving State to ensure to members of diplomatic missions freedom of movement and travel within its territory. Many Communist States on ratification of the Convention continued their previous practice of barring large tracts of their territory to diplomats not given special permission. Though it was clear that these travel restrictions could hardly be justified as a ‘restrictive application of the Convention’ but were rather a breach of its provisions, there was very little diplomatic protest or recourse to remedies such as expulsion or breach of diplomatic relations. Instead, other States responded with precisely reciprocal restrictions of their own, elaborately policed. The problem has now largely vanished, but as a result of the disappearance of restrictions on movement in States which are no longer Communist rather than as a result of more robust reliance on Article 26. Civil wars and insurrections have become a far more serious obstacle to the free movement of diplomats.

Secondly, the fundamental duty on the receiving State under Article 27 to ‘permit and protect free communication on the part of the mission for all official purposes’ appears to be very widely disregarded by those States which have the technical capacity to intercept embassy communications. Discovery of implanted listening devices was a frequent occurrence during the Cold War. As with restrictions on free movement and travel, States did not generally respond to these discoveries by closing missions but rather by improving their own physical and technical defences against intrusion. Since the ending of the Cold War there have been fewer public exchanges between States complaining of violation of their right to free and secret communication, but there is increasing evidence of widespread disregard of the secrecy of diplomatic communications. Thus, for example, it was disclosed in 2001 that the FBI not only built a surveillance tunnel under the Embassy of the Soviet Union but organized conducted tours to demonstrate its listening capacities. There were widespread allegations of bugging, in particular by the United States, of fellow members of the Security Council during the diplomatic efforts in 2003 to secure a United Nations resolution explicitly authorizing the further use of force in Iraq. The revelations by WikiLeaks have confirmed the scale of disrespect for the confidentiality of diplomatic communications.

Finally, a matter of increasing controversy is the tension between the duty of a diplomat under Article 41 of the Convention not to interfere in the internal affairs of the receiving (p. 9) State and the opinion of many liberal States that human rights in all countries are a matter of legitimate international concern whose active promotion is a major object of their foreign policy. Thus, for example, in 2000 Burma (Myanmar) accused the British Ambassador of overstepping ‘universal diplomatic norms’ by trying to make contact with the leader of the National League for Democracy Party, Daw Aung Suu Kyi, but the ambassador was strongly backed by the UK Government who stressed that human rights were a matter of general concern. The United States in recent years has openly supported non-governmental organizations in Belarus opposed to the Communist regime of President Lukashenko while withholding support from opposition political parties on the basis that this was prohibited by law. Ambassadors tread a delicate line in balancing their duties to promote universal human rights and to refrain from interference in local affairs.

The object of the book

The fourth edition of Diplomatic Law is, like its predecessors, a commentary on the Vienna Convention on Diplomatic Relations. It is intended principally as a practitioner’s handbook. Each Article or group of Articles is placed in the context of the previous customary international law, the negotiating history is described insofar as it remains illuminating, ambiguities or difficulties of interpretation are analysed, and the subsequent state practice is described. It is impossible for a single commentator to cover state practice in relation to the Convention in a comprehensive way, and this Commentary is inevitably weighted in favour of UK and US practice. Practice in other States is, however, also covered insofar as it can readily be ascertained from materials in English, French, German, or Spanish, from the Press, from the increasing number of international law journals, Digests of State practice, and Internet sites, or from cases reported in the International Law Reports, and insofar as it illustrates how the Convention itself is interpreted and applied.